📰 India invites Israeli defence companies to strengthen ties
Talks held between Rajnath and Israeli counterpart Gantz
•India on Friday invited greater participation from Israeli defence companies under the new liberalised foreign direct investment (FDI) regime in defence manufacturing. This was conveyed during a telephonic conversation between Defence Minister Rajnath Singh and his Israeli counterpart Lieutenant General Benjamin Gantz.
•The conversation took place as the Indian Armed Forces are undertaking a series of emergency defence purchases, including from Israel, amid ongoing tensions with China on the border. In May, the government increased the limit for FDI in defence through the automatic route from 49% to 74%. “Both the Ministers expressed satisfaction at the progress of strategic cooperation between the two countries and discussed possibilities of further strengthening the defence engagements,” the Defence Ministry said in a statement. The two Ministers also expressed satisfaction at the ongoing collaboration in research in fighting the COVID-19 pandemic. The Defence Minister of Israel responded positively to an invitation from Mr. Singh to visit India at the earliest opportunity, it added.
•The Army has already taken a decision to order another batch of 12 launchers and around 250 missiles of Spike Anti-Tank Guided Missiles (ATGM) and additional Heron Undermanned Aerial Vehicles (UAV), among others, from Israel through the emergency procurement route.
Talks at multilateral fora likely to go on
•India has made it clear to China that it will not be business as usual until there is a complete disengagement along the Line of Actual Control (LAC), Indian envoy in Moscow D.B. Venkatesh Varma has said. He said that India does not believe in trade war with any country.
•Officials, however, said India’s engagement with China on multilateral fora like Brazil-Russia-India-China-South Africa (BRICS), Russia-India-China (RIC) and Shanghai Cooperation Organisation (SCO) were expected to continue.
•The comments come amid the disengagement process at the LAC that appears to be stalled after an initial pullback by Chinese troops from some of the stand-off areas.
•“India seeks to resolve these problems through dialogue and we have made it clear that we will not do business with China as usual until there is a complete disengagement of military forces along the Line of Actual Control and de-escalation in the border areas in accordance with bilateral agreements and protocols. As Prime Minister Narendra Modi noted, this is an era of development, and the era of expansion has come to an end,” Mr. Varma said in an interview to Russian newspaper Izvestiya in Moscow on Thursday.
•He said India and China were negotiating to resolve the situation, including talks by Foreign Minister S. Jaishankar and National Security Adviser Ajit Doval with their Chinese counterparts. “The ban on some Chinese apps is a measure to ensure digital security,” he added.
BRICS, SCO meetings
•Meanwhile, External Affairs Minister S. Jaishankar, who took part in the Russia-India-China trilateral last month, just days after the Galwan clash, is expected to attend Foreign Ministers’ meetings of BRICS and SCO due to be held next month. Russia, which is hosting this year’s summits, has proposed September 10 for the meetings for both. On Thursday, Commerce and Industries Minister Piyush Goyal attended the 10th BRICS Trade Ministers meet, held by virtual conference, along with his Chinese counterpart.
•When asked about the government’s decision to go ahead with multilateral meetings with China despite the LAC tensions, an official said the government had taken a broader position.“ [Our stand is that] we should not vacate multilateral platforms, but use them to moderate the unilateral impulses of China and others,” said the official, adding that as the host this year, Russia had been helpful in keeping bilateral issues out of the the talks.
📰 Judicial indiscipline
Rajasthan HC has disregarded law laid down by SC while admitting plea by Pilot camp
•The Rajasthan High Court’s order, directing that status quo be maintained in the disqualification proceedings against 19 legislators and holding a legal challenge to the Rajasthan Assembly Speaker’s notice under the anti-defection law to be maintainable, borders on judicial indiscipline. The order does not give any reason for admitting the petition and overruling objections to its admissibility, except for saying legal questions have arisen, including one on the validity of a sub-clause in the Tenth Schedule. It is as if the mere fact that some questions have arisen is enough to disregard the doctrine of precedent. There is a specific prohibition in a Constitution Bench verdict of the Supreme Court on courts intervening in disqualification matters at a stage prior to a presiding officer giving a ruling. Of the 13 questions the Division Bench has framed, purporting to arise from the Speaker C.P. Joshi’s notices to 19 Congress members in the Sachin Pilot camp, the last one itself shows it cannot entertain the petition. The question is whether the Supreme Court’s judgment in Kihoto Hollohan (1992) is a bar on the High Court examining the issues. It is illogical that the Bench holds that the petition is maintainable even while proposing to examine whether a Constitution Bench judgment binds it or not. In other words, a petition has been declared maintainable on the ground that the court proposes to examine its maintainability.
•And the 1992 judgment, while upholding the validity of the Tenth Schedule to the Constitution, the anti-defection law, also declared that Para 2 — a part of which is now under challenge and is the ostensible reason for the High Court to entertain the petition — does not violate the freedom of speech, vote or conscience of elected members. Yet, the High Court is now venturing to find out whether Para 2(1)(a), which deals with disqualifying lawmakers who “voluntarily give up membership” of their party, has been examined by the apex court from the point of view of “intra-party democracy”. If at all the provision’s validity is to be tested, it can only be done in a case arising out of it. When no decision has been rendered by the Speaker, it is beyond comprehension how the court entertained arguments on the issuance of the notice and on whether dissidents can be disqualified for questioning the party line. Para 2(1)(a) has been used by Speakers for years, and many such disqualification orders have been upheld by the Supreme Court, including as recently as November 2019 in a Karnataka case. Admitting a matter without explaining how the law laid down by the Supreme Court does not bind a High Court raises grave questions of judicial propriety. However, even as the political crisis plays out on the lawns of Raj Bhavan, the top court itself appears to be raising the question whether dissent within a party can attract disqualification proceedings. Whatever the circumstances, the SC should not condone improper and premature judicial intervention.
📰 The spectre of crowds in the COVID city
Post-pandemic habitations must resist retreating into a closeted isolation that only the privileged can afford
•Distancing, isolation and the thinning out of public spaces in Indian cities have offered up new pastoral landscapes of delight for urban dwellers, with clean air, summer blooms, and assorted wildlife crossing streets. The quiet that overtook our cities during the lockdown was celebrated as a gift of the pandemic. Fuel-saving work-from-home arrangements, cost-saving virtual meetings, and spare social gatherings are seen as offering new, mellower possibilities of urban inhabitation that may save us from both COVID-19 and the ongoing climate crisis.
Key attributes
•Before we celebrate this oncoming new normal, it is important to recognise what it puts at stake. Agglomeration, density and crowds have long been definitional attributes of the urban. Urbanisation is premised on the scale economies that urban agglomeration affords. But the transformative social effects of urban density have also been long acknowledged. Cities, as close-knit, dynamic constellations of human and non-human bodies, offer ideal grounds for the spread of a virus, but also facilitate other diffusions. Urban mixings have helped dissolve or remake categories of caste and gender. They have enabled socio-economic mobility, widened horizons of possibility, and allowed historically discriminated groups to forge new identities, claim public resources, take risks and assert rights. The unpredictability and possibility contained in motley urban communions make for the “cityness” of crowds.
•The pandemic has stigmatised social density, recalling Dickensian spectres of overcrowding, contagion and disorder. Social distancing has been readily embraced by India’s caste society, which was always uncomfortable with the mingling fostered by cities. Crowding in markets, mosques or transport hubs were repeatedly highlighted as irresponsible and threatening to the health of the national body.
•As infection numbers rose steeply in Mumbai, Chennai, and Delhi by late April, COVID-19 hotspots mapped onto thickly populated zones of these cities, and congestion was singled out as a major culprit in disease spread. Slums, the problem zones of pandemic management, had drones hovering overhead to monitor compliance with stay-at-home orders. But in their congested lanes, with 150-square-feet houses, everyday activities of cooking, washing, and sleeping occur in spillover spaces outside the home. In these liminal spaces, exchanges of information, food, labour, contacts, build a scaffolding of survival for marginalised urban residents. Daily arbitrations with unfriendly and friendly bodies — strangers, migrants, stray dogs, and landlords — create a matrix of relationships that transform a housing colony into a neighbourhood.
•The months-long nationwide lockdown of Indian cities has seen spontaneous and repeated outbreaks of crowds, large and small, sparked by panic, hunger, anger, and by orchestrated celebrations of national unity. These suggest an irrepressibility to the crowd in the city.
Explaining crowding in India
•Three conditions stand out as common catalysts of crowding in the Indian city. First, scarcity. Chronic scarcity, often induced by lopsided resource distributions, induces a repertoire of techniques such as the jostle, the push, the rush to reach the counter before rations or tickets run out. Inhabiting the Indian city means learning to anticipate and participate in the crush of bodies pressing into trains and buses, clinging to their doorways as they speed along.
•Second, protest. The city is the staging ground for protesting crowds bringing diverse discontents from far afield, as in the jallikattu protests of January 2017 when throngs of agrarian protesters congregated on Chennai’s Marina Beach.
•Third, ritual or celebratory gatherings such as funerals and temple festivals regularly take over city streets, sidelining traffic for a public assertion of communal emotions.
•If scarcity, protest and celebration are catalysing conditions for crowds, India’s pandemic governance powerfully triggered each through its long and stringent lockdown. Scarcity-induced panic-buying crowds sprang up everywhere. In Tamil Nadu, Chennai’s wholesale market complex, Koyambedu, emerged as the new COVID-19 flashpoint in May, sending trails of infection across the State through truckers, loaders and vendors that converged there daily. City authorities had failed to anticipate and provide for the inevitable congregations at a large metropolitan market that generates livelihoods for a far-flung catchment of cultivators, traders and manual workers.
•Propensities for public celebration also surfaced repeatedly, from the clanging of utensils on streets during the Prime Minister’s Janata curfew in March to the masses of devotees gathering around Odisha’s Jagannath temple in June.
Migrant distress
•Protesting crowds repeatedly broke through city curfews. The most pronounced legacy of India’s lockdown is the explosion into public visibility of lakhs of inter-State migrant workers, hitherto hidden inside the urban machinery. To members of their host societies — officials, employers, landlords or the public — these workers form a barely acknowledged alien underclass, linguistically and ethnically “other”.
•Within days of the unplanned lockdown which had entirely ignored their existence, these workers were spilling into the streets of every city — hungry, jobless, abandoned by employers and contractors, desperate to return to their families. By late May, as their appeals for transport to their homes went unheeded, the fierce yearning of urban workers for their rural homes sparked crowds everywhere. They protested at industrial campuses, converged at train stations, and walked in hundreds and thousands on highways in the searing summer heat. Peaceful walkers were turned into agitated crowds by the stunning ineptitude, mal-coordination and opacity of police, district authorities, shelter administrators and railway officials, who rounded them up on their journey and returned them to the city with no clear idea of what to do with them. The Indian urban story is indelibly marked by the tragic conditions of these workers’ mass exodus, stranded at State borders, dying of hunger and exhaustion, run over by trains and trucks on the highway. These crowds index a fundamental breakdown, not only of the lockdown solution but of the urban promise of material and social mobility toward a better future.
•The pandemic has sharply exposed the faultlines of urban labour value chains, which valorise individualised work-from-home arrangements at the apex of the system, while treating the mass of physical labouring bodies as problems to be contained and controlled. As cities slowly open up, a perverted normal is unfolding, wherein private vehicles and taxis with limited occupancy are permitted, but safe mass transport arrangements, the economic and social lifeline of cities, are still a far cry. Our focus on urban agglomeration urges an imagination of post-pandemic cities that resists retiring into a closeted isolation that only the privileged can afford.
📰 Staying away from political thickets
Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected
•Former Rajasthan Deputy Chief Minister Sachin Pilot’s rebellion against Rajasthan Chief Minister Ashok Gehlot, has crashlanded in the Rajasthan High Court and the Supreme Court of India. Upon Mr. Pilot’s invitation in Rajasthan and Rajasthan Assembly Speaker C.P. Joshi’s appeal to the Supreme Court, today’s judges seem to have rushed in, where their predecessors have feared to tread. There is Constitutional history behind judicial reticence, which is normally expected, in matters involving the working of Parliament and legislatures. This history bears some retelling.
A retelling of the past
•Charles Bradlaugh was elected to England’s Parliament in 1880. He was an atheist and refused to take oath as a Member of Parliament in the name of god. The format of the parliamentary oath, only provided for swearing in in god’s name. The Serjeant of Parliament, one Mr. Gossett, refused to seat Bradlaugh in Parliament without the oath in that form. Bradlaugh appealed to the courts. The courts said they could do nothing. In Bradlaugh vs Gossett (1884), a court held the ‘decision of the House of Commons in resolving not to allow an elected Member, Bradlaugh, to take the oath, and the actions of the Serjeant at Arms in preventing Bradlaugh from entering the House, were subject to the sole jurisdiction of the House’.
•In India, one Keshav Singh was sentenced to a week’s imprisonment in 1964 for breach of privilege of the Uttar Pradesh Legislative Assembly. Subsequently, a petition filed by him was listed before the Lucknow Bench of the Allahabad High Court. When the case was called out, the government advocate was not present. The petition was admitted, and as the sentence was only one week, Singh was directed to be released on bail during the pendency of the case. The Assembly took umbrage to this. The order of stay passed by the Bench of two judges was regarded as a breach of their privilege. Soon thereafter, the assembly made an order directing the Marshal of the Assembly to arrest the two judges and produce them before the Bar of the House. These judges approached the full Bench of the Allahabad High Court, which protected them from arrest. According to Shanti Bhushan’s recollections, Justice Nasirullah Beg, who had been ordered to be arrested and confined by the marshals of the U.P. Legislative Assembly, was waiting
with a loaded gun, ready to shoot down the marshals and protect the honour of the Allahabad High Court.
Hands-off approach
•At this stage, the President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts. The Supreme Court, answering the reference, held that there is a broad separation of essential powers of each organ of the State. However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature imposing any penalty on the petitioner for its contempt “…does not commit contempt of the said legislature and the legislature is not competent to initiate proceedings against that judge”.
•Ever since, it has generally been a “hands-off” position as far as the courts interfering in the workings of legislative assemblies or Parliament is concerned. The sole exception is under the anti-defection law — after a final order of disqualification has been passed.
•This is because, a Constitution bench of the Supreme Court in Kihoto Hollohan’s case in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review. However, the same judgment makes it clear that the Court will not intervene at an interim stage.
•The majority very clearly held: “Having regard to the constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen; and no quia timet actions are permissible.”
•The same judgment further holds: “The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in a Parliamentary democracy.”
•When the Sachin Pilot episode is considered against this constitutional backdrop, it is clear that a mere issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts, which have not rejected the challenge at the threshold. Even in routine petitions against notices of proposed administrative actions, courts are reluctant to review at an interim stage. Almost invariably, the petitioner is told to answer the show cause notice and to challenge the final action only.
•The Rajasthan High Court however entertained a petition on behalf of 19 MLAs who having ensconced themselves in a resort in a neighbouring State, proceeded to challenge the Speaker’s authority to decide, if they had committed an act of defection. Arguments at length were addressed, almost as though the limitations of the Constitution Bench judgment in Kihoto Hollohan , had ceased to apply to this case. The Speaker chose to appear before the High Court and argued the merits of the matter, though he could have at a preliminary stage, challenged the court’s jurisdiction to intervene at an interim stage. The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.
A co-equal
•The High Court’s direction to the Speaker, led to him moving the Supreme Court, questioning the court’s power to direct a Constitutional authority. The principle of law being urged is that Constitutional authorities cannot issue directions to each other. They can, at best, make a polite request.
•In 1982, a Bench of the Supreme Court, directed a single judge of the Calcutta High Court to urgently hear a matter and proceed to judgment ( A.K.M. Hassamanuzaman & Ors. v. Union Of India & Ors ). The single judge in Calcutta, Justice Sabyasachi Mukherjee (later, Chief Justice of India) proceeded to hear and decide the matter. He however recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court. Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate. Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
•Constitutional courts have followed the same principle, in addressing other Constitutional authorities. The Speaker of a House of legislature or Parliament, represents that august body and is the guardian of its privileges. The House cannot be ordered around in its internal working, by any court, no matter how high or supremely infallible it perceives itself to be. Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts, when it comes to the internal working of the House of Parliament or legislature.
The last word
•Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change. They must therefore be very chary of being turned into a third house of Parliament or legislature. The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions. Even under a sovereign Constitution, parliamentary and legislative supremacy in their spheres of functioning should be respected.
•The Supreme Court permitted the Rajasthan High Court to proceed to judgment on July 24, but directed that its orders would not be implemented, as the Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas. The Rajasthan High Court has thereafter decided to await the Supreme Court judgment and in the meanwhile injuncted the Speaker from proceeding further.
•The legal back and forth has in effect granted the insurgent faction, precious time to consolidate their plans of regime change. Mr Gehlot has now, correctly called for an immediate summoning of the Rajasthan Assembly, to prove his majority on the floor of the house. Political questions must be answered in political forums and not be confined to quibbling in courts.
