📰 Facebook, WhatsApp access to govt to be studied by Supreme Court
Need to usher in a stricter regime to combat pornography, sedition, hate, fake news online, says govt.
•The Supreme Court has decided to examine whether social media intermediaries such as Facebook and WhatsApp should facilitate the State to access encrypted and private conversations of citizens, purportedly to fight crime and terror.
•A Bench of Justices Deepak Gupta and Aniruddha Bose on Tuesday transferred to itself several pending cases in various High Courts on the issue and scheduled the hearing for January 2020 last week before an appropriate Bench.
•The court is waiting for the Centre to notify the revised Information Technology Intermediaries Guidelines (Amendment) Rules by January 15. These Rules, said the government, were borne out of the present day neeed to usher in a stricter regime and more cooperation to combat the spread of pornography, sedition, hate, fake news, “anti-national activities and terror” online.
•Justice Bose said the issue concerned individual privacy versus national interest.
•“A terrorist cannot claim privacy,” submitted Attorney General of India K.K. Venugopal, along with Tamil Nadu Advocate General Vijay Narayan and Additional Advocate General Balaji Srinivasan.
•Solicitor General of India Tushar Mehta said the government’s move to gain more access into social media was not a “ploy” and was triggered by a deep concern for the sovereignty of the nation. It was stemmed out of national interest.
•“The government has no intention to invade the privacy of innocents,” Mr. Mehta said. Intermediaries should cooperate with the government to secure the nation against terror. “Your Lordships have to find a balance between national interest, sovereignty and police investigation with individual privacy.”
•Mr. Mehta was reacting to submissions made by senior advocate Shyam Divan, for Internet Freedom Foundation, that the case was momentous and affected personal freedom. “The rights of citizens cannot be trampled upon,” Mr. Divan submitted.
•Mr. Venugopal said Parliament had empowered the government through Section 69 (1) of the Information Technology Act to lawfully intercept, monitor and decrypt information through a computer resource if “satisfied that it is necessary or expedient to do so in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence or for investigation of any offence”.
•Mr. Venugopal argued, “Now social media intermediaries can’t come into the country and say they can’t allow decryption.”
•Justice Gupta remarked that the Section only allowed the government to lawfully decrypt information and did not entail any obligation on the part of the social intermediary concerned.
•Mr. Venugopal responded that the government did not want any technical assistance from the intermediary to crack encrypted social media traffic to fight crime. All it wanted was for the online platforms to facilitate access. “They will give us facilities to access the information, to access the entire counter system in which they are recording,” he submitted.
•“Not so simple. I don’t have the key,” senior advocate Mukul Rohatgi, for WhatsApp, responded to the argument.
•Justice Bose said the hardware may be located outside the country.
•“Let them say so, we will take care of that,” Mr. Venugopal replied.
•Mr. Rohatgi said the social media intermediaries were under no obligation to disclose details of private accounts. This would breach privacy.
•Justice Bose put matters in perspective, saying the social intermediaries could not claim protection under the fundamental rights of 19(1)(a) and (g) — right to free speech and right to practise any profession. “You are not an Indian citizen,” he explained.
•“I am not on my protection but on the protection of the rights of my clients [social media account holders],” Mr. Rohatgi clarified.
‘Internet a potent tool’
•In a recent affidavit, the government said Internet had emerged as a potent tool to cause unimaginable disruption to the democratic polity.
•The affidavit was explaining to the apex court the need to revise rules to regulate social media intermediaries. The affidavit filed by the Ministry of Information Technology said the regulatory regime required to be ramped up, considering the “ever-growing threats to individual rights and nation’s integrity, sovereignty and security”.
•The court hearing was based on a petition filed by Facebook for transfer of pleas concerning the linking of social media accounts to Aadhaar. Facebook and WhatsApp have argued that this would lead to loss of individual privacy. The Tamil Nadu government — one of the cases is pending in the Madras High Court — has argued that social media should be more transparent and cooperative with the police for purposes of crime detection, national security and so on.
Term of debarment was cut short
•The Delhi High Court on Tuesday sought a response from the Centre and the Election Commission (EC) on a petition challenging the poll panel’s decision to reduce the disqualification period of Sikkim Chief Minister Prem Singh Tamang from six years to 13 months. Mr Tamang was convicted in a graft case.
•A bench of Chief Justice D.N. Patel and Justice C. Hari Shankar also sought the stand of the State government and Mr. Tamang on the petition filed by General Secretary of the Sikkim Democratic Front Dek Bahadur Katwal.
•Mr. Katwal, in his plea, contended that Section 11 of the Representation of People (RP) Act was unconstitutional as it provides arbitrary powers to the EC to remove or reduce the disqualification period. The plea stated that Mr. Tamang was convicted for misappropriation of public funds.
•He was then sentenced to one year imprisonment in December 2016 by a Sikkim Court. Mr. Tamang was released in August last year after serving one year in jail.
•Mr Katwal argued that after his release, Mr. Tamang stood disqualified from contesting elections for a period of six years, as per the RP Act.
•Later in the April 2019 Assembly Elections, Mr. Tamang’s party, the Sikkim Krantikari Morcha (SKM), emerged victorious, with 17 seats in the 32-member Assembly.
•“On May 25, 2019, despite the Respondent No. 4's (Mr Tamang) disqualification under RP Act, 1951, the Governor of the State of Sikkim invited the Respondent No. 4 to form the Government, being the leader of the single largest party,” the plea said.
•Since Mr. Tamang was did not contest the elections, the petition stated that he would have to contest and win an election within six months after being sworn-in as the Chief Minister. The petition said the poll panel had passed the direction reducing Mr. Tamang’s period of disqualification by four years 11 months from 6 years, just a day before the last date for filing nominations.
•Challenging the EC’s order, the plea said it was “wholly erroneous, based on perverse reasoning and is bad in law:”. The case was posted for December 24.
📰 Leaving the door open to a border settlement
In finding solutions India and China must learn from the past; the legacy of 1962 was one of missed opportunity
•Earlier this month, at the second informal summit between India and China at Mamallapuram, off Chennai (October 11-12, 2019), China’s President Xi Jinping had told Prime Minister Narendra Modi: “In accordance with the agreement on political guiding principles, we will seek a fair and reasonable solution to the border issue that is acceptable to both sides.” But a look at the past will show that the 2005 “Political Parameters and Guiding Principles for the Settlement of the India-China Boundary Question” agreement was a ray of light in an otherwise dim process of talks that began in 1981. It signalled that both sides had substantially converged their positions on the overarching principles that would guide a resolution. The agreement declared that a “package settlement” was the only way forward along with a mutual recognition that this would involve only minor territorial adjustments. Yet, the exercise got suspended in politics soon after and both sides have been unable to engage in meaningful negotiations. When they do decide to move ahead seriously, New Delhi and Beijing would do well to look back at history for the status quo has always been the key to a legitimate settlement.
At the northern border
•It is now accepted that the frontier politics of British India had failed to produce a single integrated and well-defined northern boundary separating the Indian subcontinent from Xinjiang and Tibet. The legacy, however, was more nuanced across different sectors of the border. In the eastern sector, the British had largely attained an ethnically and strategically viable alignment via the 1914 Simla conference of British India, China and Tibet, even though the Chinese repudiated the agreement itself.
•The underlying rationale for the British at the time was to carve a buffer around an autonomous “Outer Tibet” that would eventually fall under its sway. “Inner Tibet” was intended to stay within China’s fold. While this attempted zonal division of Tibet never materialised because of Chinese resistance to the idea, the fortuitous by-product of this episode was the delimiting of a border alignment between India and Tibet that mirrors more or less the de facto position today. It is instructive that China’s principal concern a century ago was not the precise boundary between Tibet and India but the borders and the political relationship between Tibet and China. This was natural as the Chinese, utterly weak at the time, were primarily concerned about the British extending their sway over much of Tibet. Anyhow, the McMahon Line became the border between India and Tibet.
On the western sector
•In contrast, the legacy of the western sector was more blurred. This sector, the crux of the dispute, was never formally delineated nor successfully resolved by British India. The fluid British approach in this sector was shaped by the geopolitical goals of the Empire, and was never envisaged to meet the basic requirements of a sovereign nation state. There were almost a dozen British attempts to arrive at a suitable boundary. Most, however, were exploratory surveys by frontier agents reflecting British expansion in the north-west frontiers rather than a concerted pursuit of an international border. And they varied with British geopolitical objectives vis-à-vis a perceived Russian threat. For instance, when Russian influence reached Xinjiang, some British strategists advocated an extreme northern Kashmiri border to keep Britain’s main adversary at bay. At other times, a relatively moderate border was favoured, with reliance even being placed on Chinese control of Xinjiang as a buffer against Russia.
•The net result was that in 1947, no definite boundary line to the east of the Karakoram Pass existed. On the official 1950 map of India, the boundary of Jammu and Kashmir east of this pass was expressed as “Boundary Undefined”, while the 1914 McMahon Line, the de facto border between Arunachal Pradesh and China today, was depicted as the boundary in the eastern sector. Hence, in effect, India and China were faced with a “no man’s land” in eastern Ladakh, where the contentious Aksai Chin lay.
•Between 1954 and 1956, Jawaharlal Nehru engaged in several long exchanges with Premier Zhou Enlai in Delhi and Beijing but the border issue was mostly excluded from their conversations. New Delhi’s underlying assumption was that highlighting the border issue would re-open the whole question and provide the Chinese with an opportunity to make all kinds of claims. For Nehru, the 1954 Agreement that affirmed Chinese sovereignty over Tibet (but made no reference to the border) was seen as having “dealt with all outstanding matters and nothing remained...”
The swap principle
•It is only in December 1956 that the eastern section of the border was raised in the context of the Sino-Burmese border. Zhou Enlai had then remarked that the McMahon Line was an “accomplished fact” and both agreed that the “minor” border problems with India should be settled soon. In early 1957, India invited the Chinese for talks to resolve those “minor” disputes. But that never materialised and was quickly overshadowed by an escalating crisis in Tibet. And China’s attempt to restore its authority in Tibet became inextricably linked with its attitude on the frontier with India. India’s fateful decision of March 1959 to provide asylum to the Dalai Lama dramatically transformed India-China relations. That year would also witness two bloody skirmishes on the border.
•Both sides would henceforth perceive each other with deep suspicion and mistrust: India for China’s prevarication on the border, and China for India’s open interference in its domestic affairs. Despite the dramatic setback to the relationship, there was an opportunity to settle the border question on reasonable acceptable terms. It was at this crucial juncture of the crisis where Nehru along with most of the Indian leadership erred.
•In April 1960, Zhou Enlai, during his last visit to Delhi, had publicly stated, “As China was prepared to accommodate the Indian point of view in the eastern sector, India should accommodate China in the western sector…We hope, that the Indian Government will take towards the western sector an attitude similar to that which the Chinese Government had taken towards the eastern sector… an attitude of mutual accommodation.” Translating this principle into practice would have meant China accepting present-day Arunachal Pradesh as Indian territory in exchange for India accepting Aksai Chin as Chinese territory.
•Yet, hobbled by fierce domestic opposition and his own emotional impulses, Nehru rejected a potential deal out of hand: “there can be no question of horse trading in this matter — that you take this and we take that.” In April 1960, Nehru’s response to Zhou Enlai’s suggestion of both sides renouncing all territorial claims is also instructive: “Our accepting things as they are would mean that basically there is no dispute and the question ends there; that we are unable to do.” This was despite Indian policymakers being aware that India’s claim to Aksai Chin was ambiguous at best. Nehru himself admitted this in 1959: “It is a matter for argument which part belongs to us and which part belongs to somebody else. It is not clear.”
•In retrospect, the inability of the Indian side to countenance the swap principle was a missed opportunity that could have eventually settled the dispute and contained the escalating conflict in the ensuing years.
📰 Firm steps to ease the fiscal federalism tension
The Centre should not confuse uniformity for unity and must grant States the powers to levy direct taxes
•A “camel’s nose” is a metaphor from an old Arabian tale, to describe a situation where one permits a small entry to an outsider into one’s territory, only to be soon pushed out entirely. The fiscal relationship between the Centre and the States is fast turning into a “camel’s nose” syndrome for the States. After a seemingly innocuous entry through the Goods and Services Tax (GST) by the Centre into the territory of taxation powers of States, it is now arming itself to elbow the States out entirely of its fiscal powers. This is a dangerous development, especially coming at a time when the nation is at its divisive worst.
•India is a union of States. Citizens of every State elect their government independently. The primary responsibility of such an elected government is efficient governance and accountability to its voters. An elected government is typically granted the powers to be able to raise revenues through taxation of its citizens and incur appropriate expenditure for their benefit.
•Over the past five years, democratically elected State governments have been stripped of almost all powers of taxation; there is an attempt to palm off the Centre’s expenditure obligation to the States and there is now talk of even limiting expenditure powers of the States.
The meal scheme lesson
•In 1982, the newly elected Chief Minister of Tamil Nadu, MG Ramachandran (MGR) wanted to expand the midday meal programme to all 70 lakh children across 52,000 government schools to improve student enrolment. This entailed an additional expenditure of ₹150 crore, which the government did not have. MGR decided to levy an additional sales tax on goods sold in Tamil Nadu to cough up the amount needed. The programme was then further expanded by successive governments under the Dravida Munnetra Kazhagam, which then catapulted Tamil Nadu’s literacy rate from 54% in 1981 to 83% in 2011. In just three decades, Tamil Nadu was counted as one of India’s most literate States.
•MGR and other Chief Ministers of Tamil Nadu did not have to rush to New Delhi to make the decision to implement a midday meal programme and impose additional sales taxes to fund it. It was decided and approved in Chennai. But in today’s India, MGR would have had to dash to Delhi and seek approval.
•Typically, more than 80% of government’s revenues come from taxes, primarily from income tax (direct tax) and sales taxes (indirect tax). State governments in India do not have powers to levy income taxes. With GST, the Centre stuck its nose into the metaphorical indirect taxes tent of State governments. States lost their sole powers to levy indirect taxes. Instead, they depend on a GST Council to determine tax rates and revenues, in the mischievous disguise of cooperative federalism. So, a democratically elected State government in India can neither levy income tax nor sales tax. Representation without taxation, as the Americans might say.
Planned steps
•With its nose in the tent, the Centre is now stretching its arms and legs to capture more. It has now proposed that there should be a permanent expenditure fund created for defence spending out of the total tax revenue pool. The Centre keeps 52% of the total tax revenue pool and distributes 48% to all the States and Union Territories. Instead of using its 52% share to spend on defence, the present government wants to palm off this expenditure to all the States. This will likely further reduce the tax revenues distributed to States for their own expenditure. Just as how in the garb of cooperative federalism the Centre intruded into States’ taxation powers, under the garb of nationalism, it wants to further dilute the overall tax revenue pool of the States.
•If this was not enough, there is now talk, supported by the Prime Minister’s economic team, of constituting an Expenditure Council, similar to the GST Council. Not only did States lose their taxation powers but with this idea, they will lose its sole spending powers too. An elected Chief Minister of a State with no discretionary powers to earn or spend for the people of the State can virtually hand over the reins of governance to Delhi. This is not very different from how it was for provincial governments in India during the imperialistic reign.
Powers to levy income tax
•While it may seem like there is a political monopoly in India today, let us not forget the huge economic and cultural diversity among the various States. It is a terrible mistake to presume that all of India can be governed from Delhi. Elected State governments and leaders cannot be made dummies without any fiscal powers for long. This fiscal federalism tension between the Centre and States can erupt into something more dangerous and spread wide.
•The one tangible solution to restore this balance is to grant State governments the powers to levy income taxes. Since the birth of the republic, State governments have not had the powers to levy income taxes on citizens, except for agriculture taxes which are very small. In large federal democracies such as the United States, State governments and even local governments have the right to levy income taxes. In an India that is now increasingly diverging, it is imperative that democratically elected State governments are given powers to raise revenues and incur expenditure in accordance with each State’s needs and priorities. It is foolhardy to think that a council in Delhi can determine all revenues and the expenditure of each State. There is a new report of the direct tax code that has been submitted to the Finance Minister recently. The time is now appropriate to amend the Constitution to grant States the powers to levy income taxes as they deem fit.
•Among the present governmet’s various intellectual misgivings, the biggest of them is perhaps its inability to make a distinction between unity and uniformity. Uniformity is not an essential condition for unity. On the contrary, a celebration of plurality may foster greater unity in a nation such as ours. The days of imperialistic London are over. It is the era of Gandhinagar, Chennai, Lucknow and Kolkata.
📰 Recording crimes: On NCRB report
Despite delays and drawbacks, the NCRB report 2017 offers a useful snapshot of crime
•After a delay of two years, the Crime in India Report for the year 2017 was finally released by the National Crime Records Bureau on Monday. A few months ago, government officials had blamed the States of West Bengal and Bihar for lackadaisical responses in sending data, and said that more subheads for the data would be added in the latest report requiring further collation and error corrections. These new subheads reportedly included data on hate crimes besides those related to mob lynching, killings ordered by khap panchayats, murders by influential people, besides “anti-national elements”. Except for the last category — Crimes by Northeast insurgents, left wing extremists and terrorists — the other subheads are missing in the report which suggests that the Bureau was not keen on including them. The Supreme Court last year had, in an order, called for a special law to deal with lynching, and data on such hate crimes would have been useful in both law enforcement and jurisprudence. The Central government has time and again argued against the need for a separate law and has affirmed that curbing lynching was a matter of “enforcement”. Without a proper accounting of hate crimes — as of now there exist only a few independent “hate crime trackers” based on media reports — the question arises if the government is serious about tackling them effectively.
•The NCRB data on crime hide significant variances in case registration of serious crimes such as rapes and violence against women across States, which make it difficult to draw State-wise comparisons. The total number of crimes committed against women country-wide increased by 6% since 2016, while those against Scheduled Castes went up by 13%. However there is the possibility of some States reporting such crimes better. This is pertinent, particularly in rape cases, where the Union Territory of Delhi registered a rate of 12.5 per one lakh population, surpassed only by Madhya Pradesh (14.7) and Chhattisgarh (14.6). But the filing of rape complaints in Delhi have significantly increased following public outcry over the December 2012 rape incident and this could partially explain the high rate of such cases. The fact that Delhi recorded a 40.4% of the total IPC crimes registered among metropolitan cities in 2017 is also likely due to the use of easier (online) means to register them. The other drawback in the report is the use of the census base year as 2001 to calculate crime rates for States and 2011 for metropolitan cities, which make the assessments unwieldy. Despite these issues, the report offers a useful snapshot of crime in the country. Some crimes, murders for example, do not suffer from registration issues as much. The 2017 report shows that the States in the northeast and others in the rest of the country with a significant tribal population (Jharkhand, Chhattisgarh, Odisha) have relatively higher murder rates and this is a cause of worry.
📰 Preparing for disruptions induced by policies
The temporary slowdown in some sectors may carry lessons that will help India prepare for future disruptions
•Often, reforms and polices which aim to weed out adverse practices are programmed to cause disruptions. However, though these disruptions are quite intended, they catch people off-guard. This reflects lack of preparedness and unwillingness to come to terms with reality. The recent slowdown in some sectors of the economy, though temporary, may carry lessons that will help India prepare for such disruptions in the future.
Slump in the automobile sector
•Take, for instance, the automobile sector. For decades now, reams have been written about pollution, congestion, and accidents caused by the burgeoning number of automobiles in cities. Solutions that have been offered include shifting from owner-driven to mass transport systems that are more environment-friendly, less polluting, cheaper, faster and safer. That is why a dozen cities are building mass rapid transit systems.
•At the same time, some think tanks have stressed the need for enhanced paratransit including taxis to complement public transport. They have pointed out that urban infrastructure cannot keep pace with the increase in the number of automobiles.
•Today, the cost of owning a vehicle is so high and involves so many hassles that some may actually prefer taxis to owning vehicles, a trend seen in the developed economies. Logistics cost in India, at 13-14% of the GDP, is high compared to the developed world where it is around 9-10%. An ICRA study in 2018 found that post-GST, turnaround time for long-haul trucks reduced by at least a fifth as inter-State check posts were removed. This means that more trips are possible per truck and this could lead to a slump in demand for new trucks. Therefore, productivity improvement in one sector may imply catastrophe for another.
•One would have imagined, therefore, that after years of planning, campaigning, and expenditure, Indians would feel vindicated as more people are using public transport and paratransit options in major cities. We should have expected vehicle sales to fall as a result of these changes and we should have prepared for alternatives. But irrespective of whether the current fall in sales of automobiles is a temporary effect or a symptom of the downturn of the economy, the response to it is worryingly indicative of how we might respond to future shocks. What if the same scenario plays itself out as a consequence of reforms and campaigns, at least in the big cities, in a few years? Would we refuse to accept that one of the aims — an intended disruption — of transport polices (i.e., promoting mass and public transport) may actually be happening before our eyes?
One sector’s gain is another’s loss
•Wheeled luggage may result in porters in railway stations going out of business. Is that a reason to ban wheeled luggage or impose additional taxes on them? Cycle-rickshaws are slowly being phased out and are being replaced by motorised vehicles. Are we talking about the distress of the lakhs who may lose their jobs consequentially and providing them safety nets or subsidies? The fact that the coal or petroleum sectors are showing decline may not automatically imply that the core sectors are in the doldrums. The expectation should be that they will show decline, especially when India is investing so heavily in renewables. As more and more industries opt for captive renewables, thermal plants will become increasing stressed and SEBs may have to forsake their high-paying commercial and industrial customers.
•In the short run, whenever such changes take place, disruption is inevitable. Yet, naively, we expect the change to be inconsequential. Or the industry hopes that growth in the sector will outdo the disruptive effects of the reform. For instance, the auto industry may expect the growth in rural areas to far outweigh the slump in urban areas, but this may not always be the case. All this speaks volumes about the confidence we have in our own interventions. It shows our stakeholders’ unpreparedness for the consequences of the country’s consciously undertaken reforms.
•The inexorable march of technology, digitisation and ‘green’ public policies will inevitably have an impact on several industries, especially the polluting ones. National and societal welfare, the environment and ethical governance will start taking precedence over profits for a few. Several sectors of the old economy will need to brace themselves for more such shocks which will be permanent and inevitable.
📰 30% jump in ‘crimes against state’: NCRB
Report cites 51 cases of sedition, 901 under UAPA
•The 2017 Crime in India report, released by the National Crime Records Bureau (NCRB), saw a 30% jump in cases recorded as “offences against the State.” The total number of cases registered in 2017 stood at 9,013 compared to 6,986 cases registered in 2016. The maximum number of these cases were reported from Haryana (2,576), Uttar Pradesh (2,055) and Tamil Nadu (1,802).
•While 51 cases of sedition were reported in 2017, there were 24 cases related to imputation and assertions prejudicial to national integration. Under the Official Secrets Act, 18 cases were reported and 901 cases were registered under the Unlawful Activities (Prevention) Act.
•In 2017, the police across India was investigating 16,170 cases of crimes against the State, of this 7,154 were pending since 2016. As many as 105 cases of sedition and 3,550 cases registered under UAPA were pending investigation from the previous years.
•The total number of such cases committed by northeast insurgents stood at 421, with the maximum — 317 — reported from Manipur. Those by Left Wing Extremists stood at 652 and that committed by “jihadi terrorists” was 377.
•More than 21,000 incidents of cyber crimes were reported in 2017, a jump from the 12,317 such cases reported in the previous year.. Of these, cyber crimes reported against women stood at 4,242.
•The NCRB report, published after a delay of two years, included 88 new categories including sexual harassment of women at the workplace/public transport, offences relating to elections, obscene acts at public places, circulation of fake news, chit funds, cases under the Prevention of Corruption Act and Mental Health Act, noise pollution and defacement of public property.
•A new category called “anti-national elements” has been added which includes details of “jihadi terrorists, Left Wing Extremism and North East insurgents.”
Cyber stalking
•For the first time, “cyber stalking and bullying of women” has been included in the report. A total of 542 cases were reported under this category, with the maximum incidents recorded in Maharashtra (301).
•Cyber frauds relating to credit cards stood at 395 cases, for ATMs at 1543 cases, online fraud stood at 804, and 170 cases of posting fake news on social media were also included in the report.
•2017 saw 11,601 persons arrested for various cyber crimes and chargesheets was filed against 8,306 suspects. In the same year, 162 persons were convicted and 751 were acquitted for cyber crime offences.
Data on lynching unreliable: MHA
•The Union Home Ministry said on Tuesday that data received by the NCRB on certain crimes like lynching and attacks on journalists were “unreliable and their definitions are also prone to misinterpretation” .
•“It was observed that data for certain newly created additional parameters and crime heads are unreliable and their definitions are also prone to misinterpretation. Accordingly, data related to the certain parameters and crime heads have not been published,” the Ministry said.
