📰 Aadhaar gets thumbs up from Supreme Court
Upholds the passage of the Aadhaar Act as a Money Bill; says it fulfils government’s aim to provide dignity to marginalised
•The Supreme Court, in a majority opinion on Wednesday, upheld Aadhaar as a reasonable restriction on individual privacy that fulfils the government’s “legitimate aim” to provide dignity to a large, marginalised population living in abject poverty.
•“The Constitution does not exist for a few or minority of the people of India, but ‘We the People’,” the Supreme Court observed.
•The majority view by Chief Justice of India Dipak Misra and Justices A.K. Sikri and A.M. Khanwilkar declared Aadhaar a “document of empowerment.” An “unparalleled” identity proof. A document that cannot be duplicated unlike PAN, ration card, and passport.
•“It is better to be unique than the best. The best makes you number one, but unique makes you the only one,” Justice Sikri, who authored the majority opinion, wrote.
‘Widely accepted’
•Justice D.Y. Chandrachud wrote a sharp dissent, declaring Aadhaar unconstitutional. Justice Ashok Bhushan, in a separate opinion, concurred with the majority view, saying Aadhaar has been widely accepted. The three opinions of the Constitution Bench span 1,448 pages.
•Justice Sikri said technology had become a vital tool for ensuring good governance in a social welfare state. Schemes like PDS, scholarships, mid-day meals, LPG subsidies, involve a huge amount of money and “fool-proof” Aadhaar helped welfare reach the poor.
•Upholding the passage of the Aadhaar Act as a Money Bill, the Supreme Court said neither were individuals profiled nor their movements traced when Aadhaar was used to avail government benefits under Section 7 of the Aadhaar Act of 2016.
•The statute only sought “minimal” biometric information, and this did not amount to invasion of privacy.
Bar on bank-mobile link
•The majority opinion upheld the PAN-Aadhaar linkage, but declared linking Aadhaar with bank accounts and mobile SIM cards unconstitutional.
•The court insulated children from the Aadhaar regime. The card was not necessary for children aged between six and 14 under the Sarva Shiksha Abhiyan as right to education was a fundamental right. Statutory bodies like CBSE and UGC cannot ask students to produce their Aadhaar cards for examinations like NEET and JEE. Permission of parents and guardians was a must before enrolling children into Aadhaar, the Supreme Court declared. Children once they attained the age of majority could opt out of Aadhaar, the Supreme Court said.
•It said it was not trivialising the problem of exclusion faced by the elderly, the very young, the disabled and several others during the authentication process.
•Authentication was found to be only having a .232% failure, Justice Sikri pointed out. It was accurate 99.76% times, Justice Sikri said.
•He reasoned that dismantling the scheme would only disturb this 99.76%.
•The Supreme Court, in its majority opinion, said the remedy was to plug the loopholes rather than axe Aadhaar.
•“We cannot throw the baby out with the bath water,” Justice Sikri wrote.
•The court further directed the government and the Unique Identification Authority of India (UIDAI) to bring in regulations to prevent rightfully entitled people from being denied benefits.
•Countering the argument that the Aadhaar regime would facilitate the birth of a “surveillance state”, Justice Sikri wrote that Aadhaar exhibited no such tendencies. Authentication transactions through Aadhaar did not ask for the purpose, nature or location of the transaction.
•Besides, information was collected in silos and their merging was prohibited. The authentication process was not expanded to the Internet. The collection of personal data and its authentication was done through registered devices. The Authority did not get any information related to the IP address or the GPS location from where authentication was performed. “The Aadhaar structure makes it very difficult to create the profile of a person,” Justice Sikri reasoned.
•However, the Supreme Court quashed or read down several provisions in the Aadhaar Act in order to de-fang any possibility of the state misusing data.
•For one, the court held that authentication records should not be retained for more than six months. It declared the archiving of records for five years as “bad in law.” It also prohibited the creation of a metabase for transactions.
•It read down Section 33 (1), which allowed the disclosure of Aadhaar information on the orders of a District Judge. This cannot be done now without giving the person concerned an opportunity to be heard.
•The Supreme Court struck down Section 33(2), which allowed the disclosure of Aadhaar information for national security reasons on the orders of an officer not below a Joint Secretary.
•It held that an officer above the Joint Secretary rank should first consult with a judicial officer, possibly a High Court judge, and both should decide whether information need to be disclosed in the national interest.
•The court has struck down Section 47, which allows only the UIDAI to file criminal complaints of Aadhaar data breach.
•Finally, it quashed that part of Section 57 of the Act which permits private companies from using Aadhaar data to authenticate a person.
📰 SC proceedings can be live-streamed
Prior consent of parties required: SC
•The Supreme Court upheld the plea for live-streaming of its proceedings, observing that the use of technology is to “virtually” expand the court beyond the four walls of the courtroom.
•A Bench of Chief Justice of India Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud said this would help those even in distant places to witness court proceedings.
•“Live-streaming of court proceedings has the potential of throwing up an option to the public to witness proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions,” Justice Khanwilkar wrote in his opinion shared by Chief Justice Misra.
•In a separate and concurring opinion, Justice Chandrachud wrote that the live-streaming would be the true realisation of the “open court system” in which courts are accessible to all. Sunlight is the best disinfectant, he said.
•The court laid down several conditions, mostly in consonance with those handed over by Attorney-General K.K. Venugopal.
•The focus of the cameras in the courtroom will be directed only towards two sets of people – the judges and the arguing lawyers from the front side.
•The Supreme Court must retain copyright over the broadcasted material and have the final say in respect of the use of the coverage material.
•Reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage of the original broadcast of court proceedings should be prohibited, the Bench said.
📰 Ordinance allows panel to supersede scam-tainted MCI
7-member Board of Governors appointed
•In a move to enhance governance and quality of medical education, an ordinance was issued on Wednesday, dissolving the Medical Council of India (MCI) and replacing it with a seven-member Board of Governors led by NITI Aayog Member Dr. V.K. Paul.
•A Bill to replace the MCI with a National Medical Commission is pending in Parliament.
•The Board of Governors include NITI Aayog Member V. K. Paul; All India Institute of Medical Sciences-Delhi (AIIMS) Director Dr. Randeep Guleria; Postgraduate Institute of Medical Education and Research-Chandigarh (PGIMER) Director Dr. Jagat Ram; National Institute of Mental Health and Neuro Sciences-Bengaluru (NIMHANS) Director Dr. B. N. Gangadhar; and Professor, Department of Endocrinology and Metabolism Dr. Nikhil Tandon at AIIMS here.
•Director General Health Services Dr. S. Venkatesh and Director General of the Indian Council of Medical Research (ICMR) Professor Balram Bhargava will be the ex-officio members.
Board of Governors
•The Ordinance supersedes the MCI and the powers of the Council have been vested in a Board of Governors (BoG). The BoG will continue to perform till a council is constituted.
•Previously, based on the March 2016 ‘92nd Report’ of the Department related to the Parliamentary Standing Committee (PSC) on Health and Family Welfare, and recommendations of a group of experts under late Professor Ranjit Roy Chaudhary, the government introduced the National Medical Commission (NMC) Bill, 2017, in the Lok Sabha, on December 29, 2017.
•The Bill provides for simplification of procedures and was aimed at spurring rapid growth in the number of Under and Post Graduate medical seats in the country. The NMC Bill provides for distribution of functions among four autonomous Boards, whose members would be persons of proven ability selected through a transparent process, according to the Union Health Ministry.
•The Bill was taken up for consideration in January this year and was referred to the Department-related PSC on Health and Family Welfare for examination. The PSC presented its 109th Report on the Bill to the House in March, and the Ministry, after examining the recommendations, obtained approval of the Cabinet for moving official amendments.
•Meanwhile, the Supreme Court, in its judgment in May 2016, issued directions to the Centre to constitute an oversight committee with the authority to oversee all statutory functions of the MCI till a new legislation comes in.
📰 Police forces in 6 UTs merged
Non-IPS officers will be at the direct disposal of MHA
•The Ministry of Home Affairs on Wednesday notified new rules amalgamating police forces in six Union Territories.
•The rules effectively mean that officers who are not direct IPS recruits could be posted in any of the six UTs and will be at the disposal of the Ministry.
•The National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli and Chandigarh (Police Service) Rules 2018 was notified on September 25.
•An initiative which has, according to the Home Ministry, been in the works for over a year-and-a-half is being viewed as the first step towards the creation of a central police cadre allowing for the posting of police personnel across the country irrespective of the force they are initially inducted into.
•“A central pool allowing inter-transferability would also ensure that local police personnel do not fall prey to serving vested interests in their home services and ensure that they don’t become complacent,” said a senior home ministry official.
533 posts will be covered
•There are around 533 posts that will be covered under the new rules; they include assistant commissioners of police and deputy superintendent of police.
•The Rules will come into effect upon the promotion or direct recruitment of Inspectors to the post of ACP. Half of the posts at the ACP rank will be filled through direct recruitment and the other half through promotion.
•Earlier these postings were decided by the respective UT administrators.
•“There shall be constituted a Service known as the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli and Chandigarh Police Service consisting of persons appointed to the Service under rules 6 and 7...” the notification stated.
•The post/grade/service eligible for induction into the Entry Grade for the new service, according to the notification, would include personnel currently employed as inspectors in the Delhi Police, A&N Islands Police, Lakshadweep Police, Daman & Diu Police, Dadra and Nagar Haveli Police and Chandigarh Police.
📰 Boost to SC/ST quota in promotions
•A Constitution Bench of the Supreme Court on Wednesday modified a 2006 judgment requiring the State to show quantifiable data to prove the “backwardness” of a Scheduled Caste/Scheduled Tribe community in order to provide quota in promotion in public employment. The judgment gives a huge fillip for the government’s efforts to provide “accelerated promotion with consequential seniority” for SC/ST members in government services.
📰 Aadhaar survives
The Supreme Court finds a pragmatic middle path between the Aadhaar scheme’s excesses and its benefits to the marginalised
•The Aadhaar project has survived a fierce legal challenge. Ever since a nine-judge Bench ruled unanimously last year that privacy is a fundamental right, opinion began to gain ground that the unique identification programme was vulnerable in the face of judicial scrutiny. It was projected by sceptics, detractors and activists as an intrusion on citizens’ privacy, a byword for a purported surveillance system, a grand project to harvest personal data for commercial exploitation by private parties and profiling by the state. But the government has staved off the challenge by successfully arguing that it is essentially a transformative scheme primarily aimed at reaching benefits and subsidies to the poor and the marginalised. Four of the five judges on a Constitution Bench ruled that the law enabling the implementation of the programme does not violate the right to privacy of citizens; instead, the project empowers marginalised sections and procures dignity for them along with services, benefits and subsidies by leveraging the power of technology.
•In upholding the constitutional validity of Aadhaar and clarifying areas in which it cannot be made mandatory, the Supreme Court has restored the original intent of the programme: to plug leakages in subsidy schemes and to have better targeting of welfare benefits. Over the years, Aadhaar came to mean much more than this in the lives of ordinary people, acquiring the shape of a basic identity document that was required to access more and more services, such as birth and death certificates, SIM cards, school admissions, property registrations and vehicle purchases. A unique identity number, that could be availed on a voluntary basis and was conceived to eliminate the rampant fraud in the distribution of benefits, had threatened to morph — with the Centre’s tacit acceptance — into something that was mandatory for various aspects of life. The judgment narrows the scope of Aadhaar but provides a framework within which it can work. The majority opinion has sought to limit the import of the scheme to aspects directly related to welfare benefits, subsidies and money spent from the Consolidated Fund of India. Thus, controversial circulars and rules making it mandatory to link mobile phone numbers and bank accounts to Aadhaar numbers have been declared unconstitutional. Section 57 of the Aadhaar (Targeted Delivery Of Financial And Other Subsidies, Benefits And Services) Act, 2016, has been struck down to the extent that it authorised body corporates and individuals to use the Aadhaar number to establish someone’s identity. Schools have been barred from making the submission of the Aadhaar number mandatory to enrol children. A few other provisions have been read down or clarified.
•In upholding Aadhaar, the majority opinion was not oblivious to the impact of disbanding a project that has already completed much ground. For instance, relying on official statistics, the majority favoured the scheme’s continuance for the sake of the 99.76% of people included under it, rather than fret over the 0.24% who were excluded because of authentication failure. “The remedy is to plug the loopholes rather than axe the project,” the Bench said. With enrolment saturation reaching 1.2 billion people, the programme had acquired a scale and momentum that was irreversible. It was perhaps this pragmatic imperative that led the majority to conclude that the government was justified in the passage of the Aadhaar Act as a ‘money bill’, even though under a strict interpretation this is a difficult position to defend, the Centre’s objective being to bypass the Rajya Sabha, where it did not have a majority. The Court has addressed this issue by accepting the government’s argument that Section 7, which enables the use of Aadhaar to avail of any government subsidy, benefit or service for which expenditure is incurred out of the Consolidated Fund of India, is the core provision in the law, and that this makes it a ‘money bill’. It has chosen to accept the technical arguments on the safety of the Aadhaar architecture and the end-to-end encryption that underlies the transmission of captured biometric data to the Unique Identification Authority of India. The majority opinion has looked at the larger picture beyond the merits or demerits of the Aadhaar programme and the arguments for and against it. It held that the Aadhaar Act passes the “triple test” laid down in the ‘Privacy’ judgment under which there ought to be a law, a legitimate state interest and an element of proportionality in any law that seeks to abridge the right of privacy.
•In his dissent, Justice D.Y. Chandrachud argued that the Rajya Sabha’s authority has been superseded and that this “constitutes a fraud on the Constitution” — a position that is impossible to fault if one adopts a strict interpretation of what a money bill is. As a result of this “debasement of a democratic institution”, he held the Aadhaar Act unconstitutional. He also expressed his displeasure at the government passing a series of orders making Aadhaar compulsory for various reasons, in defiance of interim orders from the Supreme Court. He highlighted the biometric authentication failures that have led to denial of rights and legal entitlements, and located the reason for such failures in the project’s inability to account for and remedy flaws in its network and design. He ruled that denial of benefits arising out of any social security rights is “violative of human dignity and impermissible under our constitutional scheme”. Few would disagree with him in that “dignity and rights of individuals cannot be made to depend on algorithms and probabilities”. Finally, it was the arguments in favour of benefits to the poor and the practical consequences of abandoning the scheme that won the day. Aadhaar possibly was simply too big to fail.
📰 Cutting through the white noise
Despite the cancellation of Foreign Minister talks, movement in India-Pakistan ties is possible
•After a sudden and brief moment of clear signal, the ‘India-Pakistan channel’ has gone back to static, with the cancellation of talks between the two Foreign Ministers in New York this week. The Foreign Ministers will, no doubt, spar at the UN General Assembly, with a host of diplomats backing them up by exercising their right of reply to the comments made by either side. And ruling party and government spokespersons will bring up the rear in Delhi and Islamabad.
The road travelled
•Amidst all this, however, there is space to reconsider developments of the last few months, and recast, if desired, a new way of imagining the relationship. To begin with, the cancellation last week of the meeting between External Affairs Minister Sushma Swaraj and Pakistan Foreign Minister Shah Mehmood Qureshi has not fundamentally changed much on the ground. The two leaders would have gone into the talks with an eye over their shoulders anyway, to gauge the domestic political impact of each gesture, smile and word during the meeting. For Ms. Swaraj, elections are around the corner in Madhya Pradesh, from where she’s a Lok Sabha MP, with the general election not far way either. For Mr. Qureshi, fresh from the Pakistan Tehreek-i-Insaf’s electoral win, there would have been much scrutiny at this big India-Pakistan encounter, and he’d likely have been very cautious.
•Second, the announcement of the talks may have been the destination, but the distance the two governments traversed in the past few weeks was equally important. Ever since Pakistan Prime Minister Imran Khan won the elections, New Delhi had followed a measured but consistent path of engagement with the new government, at the highest levels. Prime Minister Narendra Modi was among the first leaders to call Mr. Khan to congratulate him after the results were declared. The day before he was sworn in as Prime Minister, Mr. Khan was part of the decision to send a ministerial delegation to former Prime Minister Atal Bihari Vajpayee’s funeral in Delhi, and the team reportedly held cordial talks with Ms. Swaraj, the first engagement at that level in some years. The government also gave clearance to former cricketer Navjot Sidhu, who is currently a minister in the Congress government in Punjab, to attend Mr. Khan’s swearing-in. (It must be noted here that amidst all the ‘white noise’ over Mr. Sidhu’s embrace of Pakistani Army Chief General Qamar Javed Bajwa, there was no statement made by the Prime Minister or the Ministry of External Affairs, although members of the Cabinet from Punjab raised it with Ms. Swaraj.) Mr. Modi sent Mr. Khan a letter the same day, expressing India’s commitment to pursuing “meaningful and constructive engagement”. In his reply a month later, Mr. Khan went a step further, making a concrete proposal for a meeting between the two Foreign Ministers at the UN, which was accepted by the government a few days later, before it was abruptly cancelled.
•Pakistan may have rightly rejected the reasons proffered for the cancellation as “unconvincing”, but the cold logic of talks remains: a meeting is only possible when both sides want it, and New Delhi has decided that this is not the time. Even so, the verbal fisticuffs that followed the cancellation do not take away from the careful diplomacy that preceded it, and could be deployed again, if opportunity knocks.
Grim backdrop
•There is also the situation at the International Border (IB) and Line of Control (LoC) to be considered, before such talks can be feasible. Defence Minister Nirmala Sitharaman’s shocking disclosure last week that “heads of Pakistani soldiers are being cut off, but not being displayed” by the Indian Army, followed by the discovery of a Border Security Force jawan’s brutally mutilated body on the Pakistani side of the IB, shows the normalisation of barbarity on both sides. Army Chief General Bipin Rawat may have tempered equally incendiary remarks on the need for a “second surgical strike”, if he had considered the results of the first one in September 2016 in terms of the data: 2017 saw even more fatal violence on the LoC than 2016, and 2018 is well on its way to becoming the worst in five years when it comes to ceasefire violations and killings of soldiers on both sides, despite a lull between June and September. The Pakistan military spokesperson’s response to General Rawat, invoking Pakistan’s status as a “nuclear-armed” power, also does nothing to make anyone in the subcontinent feel safer. It is heartening that despite all the hot words in public, the two sides are thinking rationally about improving communication at the border, with the operationalisation of a new hotline last week in Delhi between the BSF and Pakistan Rangers.
•With both civil and military ties in gridlock, the question over the choice of interlocutors remains important too. In the past decade, India and Pakistan have found the public channels of engagement — meetings between the Prime Ministers (Ufa, Lahore, etc) and the External Affairs Ministers (Islamabad, Kathmandu) — to be counter-productive to the cause of better relations. Not only does every high-level handshake or hug excite domestic opprobrium in India, it is inevitably followed by a terror attack, or incident at the border that indicates that those in Pakistan’s deep state that control terror groups are willing to derail talks at any cost. By cancelling engagement, India effectively acquiesces to those wishes.
•The one channel on the Modi government’s watch that has proven resilient is that of National Security Adviser (NSA) Ajit Doval with his former Pakistani counterpart, Nasser Khan Janjua. From November 2015 to June 2018, when he resigned due to elections, General Janjua and Mr. Doval carried on a consistent engagement, spoke over the telephone regularly to smooth over crises, and discreetly met more than half a dozen times in various places around the world. None of these meetings attracted the harsh criticism that follows the Prime Ministers’ or Foreign Ministers’ meetings.
•Clearly, the NSAs’ conversation is firewalled from the regular outrage that lights up television studios. It would therefore be a pity if Mr. Khan decides to do away with the post altogether, by remerging the NSA division with the Pakistan Foreign Ministry.
Low-hanging fruit
•If the two countries can again decide on interlocutors, the points for discussion are many, beginning with the proposal initiated by Pakistan ahead of the UN talks, of a visa-free Kartarpur corridor for Sikh pilgrims to travel to Gurdwara Darbar Sahib for the 550th birth anniversary of Guru Nanak in November 2019. Mr. Khan has spoken about trade ties being a good opener for substantive talks, and any move to consider granting India the long pending most favoured nation status would reap very rich rewards. Another long-pending discussion on visas for journalists on both sides has been raised again by Pakistan’s new Information Minister, and it is essential to build an understanding of developments on both sides of the border. When it comes to protecting the 2003 ceasefire, it is possible for this channel to consider reinforcing the fencing at the IB and LoC with a second fence on both sides, or a demilitarised zone of the sort that has withstood the Korean conflict. On the “core issues” of terrorism and Jammu and Kashmir, it is unclear if any serious talks are possible at this juncture, but both sides know exactly what they need to do to, should they wish to listen to each other’s concerns, and not just fall quiet amid the static that currently envelops the relationship.
📰 Opacity in the name of privacy
The draft Personal Data Protection Bill poses a danger to the hard-won right to information
•On August 24, 2017, the Supreme Court declared the right to privacy a fundamental right, a ruling widely welcomed. But many transparency advocates also felt apprehension, fearing that the right to privacy — meant to protect citizens from arbitrary state and corporate surveillance — might be deployed first and foremost to shield authorities from scrutiny by citizens.
Issue of accountability
•The Personal Data Protection Bill, 2018, drafted by the Srikrishna Committee, confirms these concerns. The Bill identifies “personal data” as any data that directly or indirectly identifies a person. It then calls for amending clause 8.1.j of the Right to Information (RTI) Act, 2005. The clause currently exempts the following from disclosure: “information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Public Information Officer... is satisfied that the larger public interest justifies the disclosure. Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
•The Srikrishna Committee suggests amending this clause to authorise public information officers, or PIOs, to deny information containing ‘personal data’, if they feel that such disclosure is likely to cause harm to ‘the data principal’, and if such harm outweighs public interest. The Bill defines ‘data principal’ as whoever the data relates to. This amendment may seem reasonable on first reading, but for the practical experiences of RTI users in the past years.
•The RTI Act’s core aim is to bring accountability by making available public records that disclose the actions and decisions of specific, identifiable members of the political class and the bureaucracy. The Data Protection Bill extends the cloak of ‘personal data’ over all such information. It asks PIOs (now overwhelmingly appointed at junior levels) to weigh public interest against the potential for harm to those identifiable in public documents. The Bill defines harm expansively to include everything from blackmail and bodily injury to loss of reputation, humiliation and “mental injury”. The Bill ignores that another key aim of the RTI Act is “containing corruption”. By bringing corruption to light, dogged RTI users have served public interest and caused ‘harm’, in terms of the Bill, to those exposed.
A ‘powerful proviso’
•Further, most public records identify one or more persons. For instance, file notings identify bureaucrats making decisions by their posts, or even initials/names; public records, such as contracts awarded or clearances issued, identify specific private actors. Under the proposed amendment, PIOs will be forced to test public interest versus potential for harm to multiple “data principals” in just about every request that they handle, and this is a responsibility they will be reluctant to take on. When nine judges of the Supreme Court are unable to frame the bounds of privacy, can we expect PIOs to assess which information is private, and then weigh the potential harm to individuals due to disclosure, guided all the while by public interest and the cause of accountability?
•The amended clause will chill the RTI Act, as PIOs will now have a strong legal ground to play safe, and toss out RTI requests deploying an amended clause 8.1.j. In fact, this is already happening on account of how the Supreme Court has perhaps inadvertently mangled the privacy safeguard provided in the existing Section 8.1.j. The RTI Act currently provides an acid test to help PIOs respond to requests: “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” This is a powerful proviso, also retained in the proposed amendment. It implies that PIOs can deny only that information to applicants which they would deny to Parliament or State legislatures.
•However, in Girish Deshpande v. Central Information Commission & Ors.(2012), a two-judge Bench of the Supreme Court ignored this proviso and prior precedents in order to rule that the assets and details about the performance of a public servant constituted personal information, and were exempt from disclosure. This has set a precedent for subsequent court rulings and for PIOs to indiscriminately expand the ambit of personal information, and reject RTI requests, using clause 8.1.j. Recently, the Union Department of Personnel and Training denied information about the mere number of IAS officers whose annual performance appraisal reports were pending, as of 2017. The PIO cited clause 8.1.j and the 2012 SC ruling as grounds for denial. In essence, the court has implicitly read down the powerful proviso above, prompting PIOs to “profusely abuse” the privacy exemption in the RTI Act, as Central Information Commissioner M. Sridhar Acharyulu has observed. According to Acharyulu, PIOs’ “misuse of 8.1.j is rampant”, and is reducing RTI to “a mockery.”
•The government should be addressing these alarms raised by the Central Information Commission, the RTI’s apex watchdog. The precedent created by Deshpande and its widespread abuse by PIOs need to be corrected, to reaffirm the fundamental right to information. Instead, the government is embarking on a project to legalise such ‘abuse’, by diluting transparency in the guise of an amendment furthering privacy.
•If the Bill is passed as is, and the RTI Act amended, it will deal a body blow to India’s hard-won right to information. The Ministry of Information Technology is accepting public feedback on the Data Privacy Bill until the end of September. Citizens should use this window to urge the government not to amend the RTI Act.
📰 Centre sends another advisory on lynching
Asks States to take preventive measures
•The Centre on Wednesday sent another advisory to the States on checking incidents of lynching and asked them to make the public aware that “mob violence of any kind will invite serious consequences under the law”.
•Quoting the September 24 directive of the Supreme Court, the Home Ministry told the States that preventive measures must be taken to check incidents of lynching which have taken place in different parts of the country in the recent past.
•The SC had ordered that the Union and the State governments should broadcast on radio and television and other media platforms, including official websites of the Home Department and State police forces, that lynching of any kind would invite serious consequences.
•“We have asked the State governments to comply with the order of the Supreme Court,” a Home Ministry official said.
•In an earlier advisory, the Ministry had asked the States to appoint an officer of the rank of Superintendent of Police in each district to set up a special task force for gathering intelligence and closely monitoring social media contents so that no one was attacked on the suspicion of being child-lifter or cattle-smuggler.
•The Ministry said that wherever it was found that a police officer or an officer of the district administration had failed to comply with the directions to prevent, investigate and facilitate expeditious trial of any such crime of mob violence and lynching, it should be considered an act of deliberate negligence and misconduct, and strong action must be taken against the official.
•A Group of Ministers headed by Home Minister Rajnath Singh is also deliberating on a legal framework to check incidents of lynching.
📰 G-4 countries for multilateralism, UNSC reform
•India and other Group 4 countries reaffirmed their commitment to multilateralism and called for the early reform of the United Nations Security Council (UNSC) on Tuesday.
•Hours after U.S President Donald Trump pilloried multilateralism in this address to the United Nations General Assembly (UNGA), Foreign Ministers of Brazil, Japan and Germany — Aloysio Nunes Ferreira, Taro Kono and Heiko Maas, respectively — were hosted by external Affairs Minister Sushma Swaraj for the G-4 meeting. “The G-4 Ministers reaffirmed their commitment to multilateralism. G-4 Ministers stressed that adapting the United Nations to the contemporary needs of the 21st century necessarily required reforming the Security Council,” the group said in a statement.
•Given the American disinterest in the UN and other multilateral bodies, China, one of the five permanent members of the UNSC, has slowed down the move to expand the body, according to diplomats tracking the process. The U.S. has no active opposition to the demand of these four countries to be included as permanent members of the UNSC, but the Trump administration has taken a benign approach to the reform.
Trump's accusations
•In his speech, Mr. Trump attacked the UN Human Rights Council and the International Criminal Court. “America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism,” Mr. Trump said in the speech that made sweeping accusations against multilateral institutions.
•G-4 ministers noted that despite an overwhelming majority of UN member states supporting Security Council reform, the negotiations launched in 2009 have not produced substantive progress over the 10 years. “The G-4 Ministers emphasised the need to revitalise process of the Security Council reform, and they tasked their respective officials to consider the way forward to advance the reform,” the statement said.
•While there is no active American support for reform Mr. Trump’s call for other countries to step up and share the responsibility of managing the UN might support the reform, even in the face of active Chinese opposition, according to an official. Germany and Japan contribute one fifth of the UN budget while the four countries together have one fifth of the world population. The ministers agreed that the “current composition of the UNSC does not reflect the changed global realities and they stressed that Security Council reform is essential to address today’s complex challenges.” They “reiterated their commitment to work to strengthen the functioning of the UN and the global multilateral order as well as their support for each other’s candidatures,” the statement said.
📰 Free, but not really
Understanding the differences in taxation of free services and sale of goods between the pre-GST and GST regimes
•There may be free lunches, but it is quite clear that such lunches will not be free from tax. Recently, the tax department withdrew its demand notice to banks on free service. The Goods and Services Tax (GST) Council also issued an FAQ to clarify that certain free servicesprovided by banks will not be subject to GST. But the free supply of goods and services is not altogether outside the purview of GST. An extra portion of garlic bread may not be liable to GST, but if you have the opportunity to hear a live performance, be prepared to pay GST.
The pre-GST regime
•Taxation of free services and sale of goods were generally not an issue in the pre-GST regime. This was because the basis for levying a tax (taxable event) — sale of goods or provision of services — generally contemplated consideration for such goods or services. A more precise definition with respect to the nature of the taxable event also reduced ambiguity — ‘sale’ or ‘services provided’ as against ‘supply’ in GST law. Manufacture of goods made the goods liable to excise duty, and inter-State sale of goods was exclusively subject to Central Sales Tax (CST). Only the Central government could levy both. Under CST, sale contemplated consideration, as did many of the State Value Added Tax (VAT) laws. Service tax law contemplated ‘value of services’ to be the ‘gross amount charged’ or value as determined. Barring the demand on free services in banking transactions, there was far greater clarity and certainty under the service tax regime and there have been limited instances of the tax department valuing free services. In respect of excise duty, testing samples and free samples were not exempted from excise duty, unless exempted by a specific circular. To encourage exports or for other administrative reasons, transactions of such a class were exempted from tax.
•Another transaction of a similar nature was one between an employer and employee. The Authority for Advance Rulings (AAR) ruled that provision of canteen services by an employer for which recoveries were made from employees would be liable to GST. This was specifically exempted under a Service Tax Notification. Another issue that has arisen is applicability of GST between two branches of the same company — again an issue which didn’t arise under service tax laws, since taxable entities were considered to be different ‘persons’. In the context of goods, inter-State branch transfers were exempted under CST law, and VAT laws could not tax inter-State transfers. Similarly, sales made in customs area, previously exempt as a sale made in the course of export, has been held to be liable to GST by the AAR.
The legal question
•GST has now done away with many of the exemptions and exceptions that formed an integral part of the pre-GST tax regime. There is nothing illegal or unconstitutional about this — the legislature in exercise of taxation powers has taxed legitimate transactions. Even if the tax authorities aren’t aggressively interpreting GST laws, a plain reading would show that the approach of the tax department may not be unreasonable. While we may debate the economic wisdom of taxing such transactions, we cannot question the legality. Sound economic canons require minimal exemptions and low rates for ease of administration and greater compliances.
•But taxation of free services isn’t the dark line threatening the silver cloud of GST. Even the ominous anti-profiteering rules, with limited rulings and enforcement, haven’t been a poor measure in GST. Delayed refunds, taxation of exports and possibly taxation of digital economy seem to be more worrisome issues. The biggest concern, however, may relate to taxation powers itself. Powers of taxation between the Centre and States were meant to be mutually exclusive. However, the 101st Constitutional Amendment Act, 2016, may have left wiggle room for States by giving them power to tax ‘entertainments and amusements’. Concurrent exercise of taxation powers was impermissible prior to the constitutional amendment. This anomalous situation will enable a State to tax the same transaction that has already been subject to GST. The full effect of State autonomy has also not unfolded yet.
•Despite the Supreme Court’s observations on cooperative federalism, differences between States and the Centre on tax allocation and finances are subject to political relations between the Centre and the State. One hopes that a pragmatic approach is taken as it would have adverse effects on businesses across the country.
📰 Chasing the monsoon
How has the monsoon fared this year?
•Even though the monsoon is fairly consistent in the amount of rainfall that India receives between June and September, there is a sharp variation every year that makes it unique. This year, the floods in Kerala and the torrential rains in Himachal Pradesh may have given the impression of a good monsoon, but the numbers say that India is facing a 9% deficit. This means that the country has only received 81 cm of rainfall compared to the normal 89 cm. Also, 11 of India’s 36 meteorological subdivisions (comprising 30% of the country’s area) have seen a 20% shortfall.
•Until mid-September, India faced a 10% deficit. If the current 9% deficit increases, 2018 could be termed as an “all India deficient year”. Since 2015, the India Meteorological Department (IMD)doesn’t use the term “drought”.
Which parts have seen a deficit?
•The maximum shortfall (24%) has been in the eastern and Northeastern States, which account for 40% of the monsoon rains. Arunachal Pradesh has seen a 37% deficit, Assam and Meghalaya 27%, Nagaland, Manipur, Mizoram and Tripura 22%, Jharkhand 26%, and Bihar 23%. All the other divisions — the Southern Peninsula, Northwest India, and Central India — have also registered less rainfall than their normal quotas.
What brought down the deficit by 1%?
•Last week, Cyclone Daye, which originated as a cyclonic circulation in the Bay of Bengal, gave rains to most parts of the country except the southern States. When it collided with another system from the Arabian Sea that had travelled up north, it led to flash floods and landslides in Northwest India. The cyclone even delayed the exit of the monsoon that normally begins from the first week of September, and the IMD in a statement said it expects this withdrawal to begin on Saturday. All rainfall in India until September 30 counts as monsoon rainfall.
How has it affected agriculture?
•On September 17, the Agriculture Ministry stated that it had set a production target of 285.2 million tonnes for 2018-19, a marginal increase from the previous year’s harvest of 284.8 million tonnes. This was when the rainfall deficit was at 10%. The 2018-19 target for rice is 113 million tonnes; for wheat, it is 100 million tonnes. These are marginally higher than last year’s harvest. However, the targets for pulses, coarse cereals and maize are slightly lower.
📰 Lack of consensus stalls demonetisation report again
BJP members on parliamentary committee oppose its finalisation
•The reconstituted Parliamentary Committee on Finance, headed by M. Veerappa Moily of the Congress, could not build a consensus on the long-pending report on demonetisation with BJP members continuing to oppose its finalisation.
•A draft report on demonetisation, which was circulated last year, looks at the impact of the move and whether it managed to meet the government’s stated objectives.
•The report, however, could not be tabled either in the winter or monsoon sessions of Parliament as the BJP members protested.
Recast panel
•The previous committee’s term ended on August 31 and the panel was reconstituted on September 19, with five new members.
•Mr. Moily continues to be its Chairman. According to sources, Wednesday’s meeting saw Mr. Moily once again raise the issue of the pending report on demonetisation.
•The panel’s BJP members, including Nishikant Dubey, MP from Jharkhand, and Rajya Sabha member Rajeev Chandrashekar, raised at least three points opposing the finalisation of the report.
•These MPs contended that it would not look good if the majority of the committee’s members filed a dissent note on the draft report. Secondly, as there were five new members in the committee, they argued that these members too needed to be given an opportunity and the time to provide their inputs to the report. This will take time, since they will have to study the existing evidence and minutes of the previous meetings of the committee.
•The BJP members also said newer evidence, including a report by the Reserve Bank of India, had come up since the draft report was circulated almost six months ago and these needed to be factored into the report.
•According to the sources, Trinamool Congress MP Dinesh Trivedi asserted that the committee could no longer ignore the report after having worked on it for so long. The RBI Governor had deposed twice before the committee and senior bureaucrats too had spent several man hours for the committee.
Duty-bound
•“If consensus can’t be built, then so be it. We are duty-bound to deliver the report to Parliament,” Mr. Trivedi is said to have told the committee, according to the sources. Mr. Moily too sought to remind the committee that the report did not reflect only the Chairman’s views but those of the committee as well. He said the report had been drawn up after collecting evidence from various sources and needed to be brought to its logical conclusion.
📰 ‘Biggest bird’ dispute put to rest
One species of elephant bird weighed about 860 kg: Study
•Scientists said on Wednesday that they have finally solved the riddle of the world’s largest bird.
•A study released on Wednesday by British scientists suggested that one species of elephant bird was even larger than previously thought, with a specimen weighing an estimated 860 kg — about the same as a fully grown giraffe. “They would have towered over people,” said James Hansford, lead author at the Zoological Society of London. “They definitely couldn’t fly as they couldn’t have supported anywhere near their weight.”
Bones examined
•In the study, published in the journal Royal Society Open Science, Mr. Hansford examined elephant bird bones found around the world, feeding their dimensions into a machine-learned algorithm to create a spread of expected animal sizes.
•Named Vorombe titan — Malagasy for “big bird” — the creature would have stood at least three metres (10 feet) tall, and had an average weight of 650 kg.
•“At the extreme extent we found one bone that really pushed the limits of what we now understand about bird size,” he said, referring to the 860-kg specimen.
📰 Centre hikes import duty on select goods
Move aimed at curbing imports, narrowing CAD
•The government on Wednesday released a list of 19 categories of items on which it would be hiking import duties, which include white goods such as air-conditioners, refrigerators and washing machines as well as non-essential items such as gems, travel bags and aviation turbine fuel (ATF).
•The new rates will be applicable from September 27.
•“The Central Government has taken tariff measures, by way of increase in the basic customs duty to curb import of certain imported items,” the government said in a statement. “These changes aim at narrowing the current account deficit (CAD).”
•“Notifications are being issued today [Wednesday],” the statement added.
•“These changes in rates of basic customs duty (BCD) will be effective from September 27, 2018. The total value of imports of these items in the year 2017-18 was about ₹86,000 crore.”
Checking forex drain
•“The significant increases in customs duties of selective items which the government perceives to be non-essential imports appears to be aimed at reducing the drain of currency reserves and boost domestic demand,” said Prashant Deshpande, partner, Deloitte India.
•Previously, Economic Affairs Secretary Subhash Chandra Garg had said that curbing imports through tariffs would help in shoring up the rupee to 68-70 levels against the U.S. dollar. Commerce Secretary Anup Wadhawan on Tuesday said that India had the right to raise import tariffs within a band under the World Trade Organisation rules, and that it would exercise this right in the best interest of the country.
•“The messaging seems to be clear that if you want to access the Indian market, then start manufacturing here. The move, though significant, is not surprising with what is happening globally,” said Pratik Jain, Indirect Tax Leader, PwC India.
•“This increase in duty on imports with the already depreciating rupee would be quite a point of worry for the importers.
•“However, this hike in duty may not impact importers who procure from countries with which India currently has beneficial free trade agreements,” said Abhishek Jain, tax partner, EY.
