📰 Supreme Court for posting retired judges to clear backlog in High Courts
“In North India, some courts have cases pending for 30 years”
•The Supreme Court on Thursday pushed for the appointment of retired judges to battle pendency of cases in High Courts.
•A Bench led by Chief Justice of India Sharad A. Bobde said retired judges could be chosen on the basis of their expertise in a particular field of dispute and allowed to retire once the pendency in that zone of law was over.
•“There are suits pending in chartered courts, and in North India, some courts have cases pending for 30 years... there are all kinds of problems,” Chief Justice Bobde said at a virtual hearing of a petition filed by NGO, Lok Prahari, on the mounting backlog.
•The Bench said retired judges who had handled certain disputes and fields of law for over 15 years could deal with them faster if brought back into harness as ad-hoc judges. “Once pendency is over, they can end their tenure,” Chief Justice Bobde said.
•The court said the appointment of ad-hoc judges would not be a threat to the services of other judges. “Ad-hoc judges will be treated as the junior most,” Chief Justice Bobde said.
•The Chief Justice said the appointment of ad-hoc judges was provided for in the Constitution under Article 224A (appointment of retired judges at sittings of High Courts). Under the Article, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of judge of that court or of any other High Court to sit and act as a judge of the High Court for that State.
•The court orally outlined prospective guidelines for the appointment and functioning of an ad hoc judge.
•“If in a particular jurisdiction, the pendency goes beyond a certain limit, say eight or 10 years, the Chief Justice may appoint a certain [retired] judge with expertise in those fields of laws as an ad hoc judge. The term of such a judge could be extendable... it would not be possible to predict anything in the beginning,” it said.
As on March 22, 12-D forms (seeking postal ballots) have been received by Returning Officers from over 1.49 lakh elderly electors.
•Postal voting for electors aged above 80 is under way in various Assembly constituencies of Tamil Nadu. As on March 22, 12-D forms (seeking postal ballots) had been received by Returning Officers from over 1.49 lakh elderly electors.
•This is the first time certain sections of the public in the State have been allowed to cast postal ballots.
•Earlier, only service voters and those drafted for election work were allowed the facility.
Different dates
•Speaking to The Hindu, Chief Electoral Officer Satyabrata Sahoo said the date on which election officials would visit the homes of such elderly voters would not be the same across the State. “It would depend on the respective Returning Officers, the number of such electors, their availability, police personnel and video teams.”
•“If a Returning Officer has satisfied all the requirements needed for undertaking the postal ballot voting, he/she can commence,” he said.
•An Assistant Returning Officer would be assigned to handle all the work related to postal ballot voting by absentee voters.
No agent present
•On Thursday, a team of officials visited the homes of those who had submitted 12-D forms in various parts of Ambattur and received their ballots in a postal ballot box. After fulfilling the procedure, the electors were handed ballot sheets, and they were offered privacy for a few minutes to affix a tick against the candidate of their choice.
•No agent of any political party was present. However, in some cases, spouses were seen along with the electors while they were casting the ballots. “Every elector would be provided with a list of candidates for reference before casting his/her postal ballot,” Mr. Sahoo said.
•All the forms and postal ballots are enclosed in envelopes before they are received in the postal ballot box. Besides elderly electors, 12-D forms were also received from over 45,300 persons who are differently abled.
•All 234 Assembly constituencies in Tamil Nadu will go to the polls on April 6, and the counting is scheduled for May 2. The schedule is the same for the byelection to the Kanniyakumari Lok Sabha constituency.
📰 Supreme Court asks govt. to clarify on 55 Collegium recommendations for judicial postings
The court asked Attorney General K.K. Venugopal to enquire with the Union Ministry of Law and Justice and make a statement on April 8 about their status.
•The Supreme Court on Thursday asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to various High Courts six months to nearly a year-and-a-half ago.
•Forty-four of the pending recommendations were made to fill vacancies in the Calcutta, Madhya Pradesh, Gauhati, Rajasthan and Punjab High Courts. These recommendations have been pending with the government for over seven months to a year.
•The remaining 10 names have been pending with the government despite their reiteration by the Collegium. They include five for the Calcutta High Court pending with the government for one year and seven months. The recommendations of four names made by the Collegium to the Delhi High Court have been pending for seven months.
‘Matter of grave concern’
•“This is a matter of grave concern... When do you propose to take a decision?” a Special Bench led by Chief Justice of India Sharad A. Bobde asked Attorney General K.K. Venugopal, appearing for the government.
•The court asked Mr. Venugopal to enquire with the Union Ministry of Law and Justice and make a statement on April 8 about their status. The Bench handed over to Mr. Venugopal a chart containing the details of the 55 recommendations.
•Justice Sanjay Kishan Kaul said on the 10 recommendations, some of which date back to a year-and-a-half, that “neither have they been appointed nor have you (government) given us a response”.
•Justice Kaul, who was accompanying the Chief Justice and Justice Surya Kant, said the “thought process” of both the government and Collegium should be modulated. He said a time frame needed to be fixed for both the Collegium and Ministry to complete the appointment process.
•Senior advocate Vikas Singh, who is the president of the Supreme Court Bar Association, said there was a need to institutionalise a process for considering advocates practising in the top courts to judgeships in the High Courts.
•“There should be an institutional basis for considering names from the Supreme Court Bar, rather considering them on an ad hoc basis. It should be done as a rule and not as an exception,” Mr. Singh said.
•Chief Justice Bobde said the court was in complete agreement with Mr. Singh’s sentiments. The CJI said the problem may be that “in some States the Bar Associations call these advocates as outsiders”.
•Mr. Singh said this was not the case and Supreme Court advocates too should come within the zone of consideration of the Collegium for HC judgeships.
•The Bench said it would take up this matter on April 8.
•The total sanctioned judicial strength in the 25 High Courts is 1,080. However, the present working strength is 661 with 419 vacancies as on March 1.
•The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
•It said in October that some of these High Courts were functioning only with half their sanctioned judicial strength. On an average, the courts suffered at least 40% judicial vacancies.
•The government has countered that the fault lay with the Collegium and the High Court for delaying the process. Mr. Venugopal said the government’s delay was largely because it thoroughly combed the antecedents of the candidate, leaving no room for error. The process, on an average, took at least 127 days. On the other hand, the judiciary took 119 days on an average merely to forward the file to the government.
•Mr. Venugopal referred to how the Collegium system was put to an end through the National Judicial Appointments Commission to make the appointments process transparent and participatory, only to be thrust out by the Supreme Court.
📰 In signal to China, U.S. raised India ties during Alaska talks
The reference was not favourably received by Beijing
•The Joe Biden administration highlighted the strength of U.S.-India ties in its March 19 meeting with Chinese officials in Alaska, underlining how it has increasingly come to view India as central to its broader objectives in dealing with China in the Indo-Pacific region.
•The reference to India, it is learnt, was not favourably received by China’s two officials in Alaska — top diplomat and Politburo member Yang Jiechi and Foreign Minister Wang Yi — and is being seen as reflecting how U.S.-India relations, only two months into the new administration, are developing robustly.
•The speed with which the new Biden administration has pushed closer ties with India has come in sharp contrast to expectations in some quarters, both in New Delhi and Washington, that relations would not be as smooth as they were with the Donald Trump administration, both because of the rapport between Mr. Trump and Prime Minister Modi and the former U.S. President’s lack of interest in India’s internal affairs and more broadly, human rights issues abroad.
•But two months on, any initial wariness that the relationship, which had seen rapid progress particularly on the security side over the past four years, would have to be rebuilt from scratch has dissipated.
•One reason for that is the successful holding of the virtual Quad summit between India, the U.S., Japan and Australia on March 12, seven days before the U.S.-China Alaska talks. Although the Biden administration’s message was it did not want to push any country beyond its comfort level and was willing to keep in mind their respective China concerns — hence the absence of any reference to China in the joint statement and the focus on deliverables such as the vaccines initiative — India’s immediate expression of willingness to go ahead with the summit and the “clarity” with which it put forward its agenda eased many concerns in Washington that New Delhi, amid the on-going disengagement process with China along the Line of Actual Control (LAC), might waver in its commitment to the grouping. If India has made clear it will not be part of any formal alliances, it has also suggested it is more willing to push the bar with China than previously.
•The broader reason for the smooth transition in India-U.S. relations is the new administration’s emphasis on a bipartisan approach to India and other key foreign policy issues, despite the divisiveness at home on the domestic agenda. One indicator of that was Mr. Biden’s insistence that a video prepared for the Quad summit would begin by, at the very start, acknowledging former President George W. Bush’s legacy in building the Quad, which first came to life following the 2004 Indian Ocean tsunami. India’s familiarity with three of the key interlocutors in the new administration’s Indo-Pacific agenda — Secretary of State Antony Blinken and National Security Adviser Jake Sullivan, who chaired the meeting in Alaska, as well as the newly announced “Indo-Pacific coordinator” Kurt Campbell — has also helped.
•On Thursday, China’s military hit out at the Quad, describing it as a mechanism “promoted by the United States” and said it “adheres to the Cold War mentality, believes in group confrontation, is keen on geopolitical games, and uses the so-called ‘China challenge’ as an excuse to ‘form cliques’ and openly provoke relations between regional countries”.
•“We are firmly opposed to this,” PLA Senior Colonel and Ministry of Defence spokesperson Ren Guoqiang said. “Seeking peace, development, and seeking cooperation and win-win is the trend of the times. Anything that goes against the trend of the times and satisfies one’s own selfishness is untimely, unpopular and is doomed to failure. China has always insisted on being a builder of world peace, a contributor to global development, and a defender of international order. We urge the United States to take up its responsibilities and refrain from making mistakes and do more things that are conducive to regional peace and stability,” he said.
•On the LAC disengagement, he repeated China’s earlier statement that both sides had positively viewed the disengagement at Pangong Lake and had “agreed to maintain communication through military and diplomatic channels so as to promote the settlement of other issues” such as in the Gogra-Hot Springs area, which the next round of military talks is expected to take forward. He said thanks to “joint efforts”, the situation in the border area “has been eased distinctly” and “China hopes the two sides can value the hard-won results, follow the important consensus reached by the leaders of both countries, maintain dialogue and communication, and stabilise the situation against relapse, gradually coming to solutions that can be accepted by the two countries to jointly maintain peace in the border area."
•A bipartisan approach to foreign policy was among the messages delivered by the U.S. in Alaska to China’s officials, who in the course of the talks, in response to U.S. criticism on Hong Kong and Xinjiang, repeatedly highlighted the rancour in Washington following the elections, including the attack on Capitol and attempts to delegitimise the election. The other message was that a Biden administration would not be a return to Obama 2.0 and any notions of a “G2" arrangement and accommodation with China had long been buried.
•The context in which India was brought up in Alaska — as a key partner of the U.S. and a country that shared similar values, a message that the Chinese side did not welcome — reflected the marked change from 2009, when a joint statement following talks in Beijing between Barack Obama and Hu Jintao said both sides “support the improvement and growth of relations between India and Pakistan” and were “ready to strengthen communication, dialogue and cooperation on issues related to South Asia and work together to promote peace, stability ad development in that region”. That brought a sharp response from Delhi, telling both countries that “a third country role cannot be envisaged nor is it necessary”.
📰 An unequal providence: On modified PF savings cap
Modified tax provision on PF income discriminates against non-govt. employees
•Finance Minister Nirmala Sitharaman has steered through Parliament the Finance Bill of 2021, which includes 127 amendments. Among the major changes is a tweak in the proposal to tax income on PF contributions over ₹2.5 lakh a year. Responding to MPs’ concerns on the tax, she said that nearly 93% PF account holders will be covered by the ₹2.5 lakh per year limit, while a mere 1% were abusing the system. Yet, she introduced an amendment doubling the threshold for annual PF contributions to ₹5 lakh, only for employees whose employers do not remit any contribution to their retirement fund account. For the crores of Employees’ PF account holders in the private sector, this ₹5 lakh threshold is a non-starter as an employer-employee relationship is an implicit requirement to open an EPF account. While employees may voluntarily enhance contributions beyond the statutory wage limit of ₹15,000 a month and employers are not bound to match enhanced contributions, a ‘zero employer contribution’ scenario is not possible for EPF members. This suggests that only some senior government staff who joined service before 2004 and are not part of the NPS will benefit from this concession, as they contribute to the GPF account and get a defined benefit pension separately.
•In a country with a large informal workforce and sparse social security systems, reasonable savings for retirement should not be penalised. But to give tax relief for such savings only to government employees smacks of bureaucratic preservation of self-interests deriding an equitable approach to taxation. The least the government could have done was to offer the same cap of ₹5 lakh to EPF members, by including their employer contributions during the year. As things stand now, annual investments into the PPF that anyone can open, are capped at ₹1.5 lakh. Similarly, employee PF contributions beyond ₹1.5 lakh are not tax-deductible under Section 80C of the I-T Act, but income on such contributions beyond ₹2.5 lakh will be taxable and employer contributions into the EPF, NPS or any superannuation pension fund are capped at ₹7.5 lakh. And the income on GPF contributions up to ₹5 lakh would be tax-free. This dissonance suggests an unconscionable disconnect between policy makers and the aspirations of the working class to save for their sunset years. To top this off, the new Wages Code will compel employers to pay higher EPF contributions by linking them to at least half of their total pay on a cost to company basis, rather than 24% of basic pay presently. This will virtually force many EPF members into contributing over ₹2.5 lakh a year. This either reflects a lack of system-wide thinking, with two arms of the government working at cross purposes, or an ingenious ploy to stir up tax collections. With doubts on the implementation of this new tax yet to be addressed, the government must consider putting it on hold and think through its implications.
📰 Here is why the electoral bonds scheme must go
It violates the basic tenets of India’s democracy by keeping the knowledge of the ‘right to know’ from citizens and voters
•The Supreme Court, after a brief hearing on March 24, reserved orders on the question of whether or not to stay the electoral bond scheme, ahead of the upcoming State elections. For the last three years, electoral bonds have been the dominant method of political party funding in India. In their design and operation, they allow for limitless and anonymous corporate donations to political parties. For this reason, they are deeply destructive of democracy, and violate core principles of the Indian Constitution.
A blow against democracy
•If democracy means anything, it must mean this: when citizens cast their votes for the people who will represent them in Parliament, they have the right to do so on the basis of full and complete information. And there is no piece of information more important than the knowledge of who funds political parties. Across democratic societies, and through time, it has been proven beyond doubt that money is the most effective way of buying policy, of engaging in regulatory capture, and of skewing the playing field in one’s own favour. This is enabled to a far greater degree when citizens are in the dark about the source of money: it is then impossible to ever know — or assess — whether a government policy is nothing more than a quid pro quo to benefit its funders. The Indian Supreme Court has long held — and rightly so — that the “right to know”, especially in the context of elections, is an integral part of the right to freedom of expression under the Indian Constitution. By keeping this knowledge from citizens and voters, the electoral bonds scheme violates fundamental tenets of our democracy.
•It is equally important that if a democracy is to thrive, the role of money in influencing politics ought to be limited. In many advanced countries, for example, elections are funded publicly, and principles of parity ensure that there is not too great a resource gap between the ruling party and the opposition. The purpose of this is to guarantee a somewhat level playing field, so that elections are a battle of ideas, and not vastly unequal contests where one side’s superior resources enable it to overwhelm the other. For this reason, in most countries where elections are not publicly funded, there are caps or limits on financial contributions to political parties.
•The electoral bonds scheme, however, removes all pre-existing limits on political donations, and effectively allows well-resourced corporations to buy politicians by paying immense sums of money. This defeats the entire purpose of democracy, which as B.R. Ambedkar memorably pointed out, was not just to guarantee one person, one vote, but one vote one value.
•However, not only do electoral bonds violate basic democratic principles by allowing limitless and anonymous donations to political parties, they do so asymmetrically. Since the donations are routed through the State Bank of India, it is possible for the government to find out who is donating to which party, but not for the political opposition to know. This, in turn, means that every donor is aware that the central government can trace their donations back to them. Given India’s long-standing misuse of investigative agencies by whichever government occupies power at the Centre, this becomes a very effective way to squeeze donations to rival political parties, while filling the coffers of the incumbent ruling party. Statistics bear this out: while we do not know who has donated to whom, we do know that a vast majority of the immensely vast sums donated through multiple electoral cycles over the last three years, have gone to the ruling party, i.e. the Bharatiya Janata Party.
Gaps in government’s defence
•The government has attempted to justify the electoral bonds scheme by arguing that its purpose is to prevent the flow of black money into elections. The journalist Nitin Sethi has already debunked this rationale in a detailed 10-part investigative report, which has also highlighted reservations within the government as well as by the Election Commission of India to the electoral bonds scheme. That apart, this justification falls apart under the most basic scrutiny: it is entirely unclear what preventing black money has to do with donor anonymity, making donations limitless, and leaving citizens in the dark. Indeed, as the electoral bonds scheme allows even foreign donations to political parties (which can often be made through shell companies) the prospects of institutional corruption (including by foreign sources) increases with the electoral bonds scheme, instead of decreasing.
•It is important to be clear that the objections to the electoral bonds scheme, highlighted above, are not objections rooted in political morality, or in public policy. They are constitutional objections. The right to know has long been enshrined as a part of the right to freedom of expression; furthermore, uncapping political donations and introducing a structural bias into the form of the donations violate both the guarantee of equality before law, as well as being manifestly arbitrary.
The judiciary needs to act
•This brings us to the all-important role of the courts. One of the most critical functions of an independent judiciary in a functioning democracy is to referee the fundamentals of the democratic process. Governments derive their legitimacy from elections, and it is elections that grant governments the mandate to pursue their policy goals, without undue interference from courts. However, for just that reason, it is of vital importance that the process that leads up to the formation of the government be policed with particular vigilance, as any taint at that stage will taint all that follows. In other words, the electoral legitimacy of the government is questionable if the electoral process has become questionable. And since the government itself cannot — in good faith — regulate the process that it itself is subject to every five years, the courts remain the only independent body that can adequately umpire and enforce the ground rules of democracy.
•It is for this reason that courts must be particularly sensitive to and cognisant of laws and rules that seek to skew the democratic process and the level playing field, and that seek to entrench one-party rule over multi-party democracy. There is little doubt that in intent and in effect, the electoral bonds scheme is guilty of both. Thus, it deserves to be struck down by the courts as unconstitutional.
•In this regard, the conduct of the Supreme Court so far has been disappointing. The petition challenging the constitutional validity of the electoral bonds scheme was filed in 2018. The case, which is absolutely vital to the future health of Indian democracy, has been left unheard for three years. The Supreme Court’s inaction in this case is not neutral: it directly benefits the ruling party which as we have seen, has received a vast bulk of electoral bond funding through the multiple State and one general election since 2018, and creates a continuing distortion of democracy. It is a matter of some optimism that a start was finally made when the Court heard the application for stay before this round of elections. One can only hope that the Court will stay the scheme so that it does not further distort the coming round of elections, and then proceed to hear and decide the full case, in short order.
📰 Remove the wedges in India-Bangladesh ties
Small but important steps can put an end to the long-standing issues in a relationship that is gradually coming of age
•The friendship between India and Bangladesh is historic, evolving over the last 50 years. India’s political, diplomatic, military and humanitarian support during Bangladesh’s Liberation War played an important role towards Bangladesh’s independence. Nearly 3,900 Indian soldiers gave up their lives and an estimated 10 million Bangladeshi refugees took shelter in India.
Now it is about cooperation
•Post-Independence, the India-Bangladesh relationship has oscillated as Bangladesh passed through different regimes. The relationship remained cordial until the assassination of Bangladesh’s founding President Sheikh Mujibur Rahman in August 15, 1975, followed by a period of military rule and the rise of General Ziaur Rahman who became President and also assassinated in 1981. It thawed again between 1982-1991 when a military-led government by General H.M. Ershad ruled the country. Since Bangladesh’s return to parliamentary democracy in 1991, relations have gone through highs and lows. However, in the last decade, India-Bangladesh relations have warmed up, entering a new era of cooperation, and moving beyond historical and cultural ties to become more assimilated in the areas of trade, connectivity, energy, and defence.
•Bangladesh and India have achieved the rare feat of solving their border issues peacefully by ratifying the historic Land Boundary Agreement in 2015, where enclaves were swapped allowing inhabitants to choose their country of residence and become citizens of either India or Bangladesh. The Bangladesh government led by Prime Minister Sheikh Hasina has uprooted anti-India insurgency elements from its borders, making the India-Bangladesh border one of the region’s most peaceful, and allowing India to make a massive redeployment of resources to its more contentious borders elsewhere.
•Bangladesh today is India’s biggest trading partner in South Asia with exports to Bangladesh in FY 2018-19 at $9.21 billion and imports at $1.04 billion. India has offered duty free access to multiple Bangladeshi products. Trade could be more balanced if non-tariff barriers from the Indian side could be removed. On the development front, cooperation has deepened, with India extending three lines of credit to Bangladesh in recent years amounting to $8 billion for the construction of roads, railways, bridges, and ports. However, in eight years until 2019, only 51% of the first $800 million line of credit has been utilised whilst barely any amount from the next two lines of credit worth $6.5 billion has been mobilised. This has been mostly due to red-tapism from India’s end, and slow project implementation on Bangladesh’s end.
•Bangladeshis make up a large portion of tourists in India, outnumbering all tourists arriving from western Europe in 2017, with one in every five tourists being a Bangladeshi. Bangladesh accounts for more than 35% of India’s international medical patients and contributes more than 50% of India’s revenue from medical tourism.
The connectivity boost
•Connectivity between the two countries has greatly improved. A direct bus service between Kolkata and Agartala runs a route distance of 500 km, as compared to the 1,650 km if it ran through the Chicken’s Neck to remain within India. There are three passenger and freight railway services running between the two countries, with two more routes on their way to be restored. Recently, a 1.9 kilometre long bridge, the Maitri Setu, was inaugurated by Prime Minister Narendra Modi, connecting Sabroom in India with Ramgarh in Bangladesh.
•Bangladesh allows the shipment of goods from its Mongla and Chattogram (Chittagong) seaports carried by road, rail, and water ways to Agartala (Tripura) via Akhura; Dawki (Meghalaya) via Tamabil; Sutarkandi (Assam) via Sheola, and Srimantpur (Tripura) via Bibirbazar. This allows landlocked Assam, Meghalaya and Tripura to access open water routes through the Chattogram and Mongla ports (https://bit.ly/3vXySpB).
Bones of contention
•Despite the remarkable progress, the unresolved Teesta water sharing issue looms large. Border killings are yet to stop. The year 2020 saw the highest number of border shootings by the Border Security Force. The shots are fired at civilians, usually cattle traders, who are usually unarmed, trying to illegally cross the border. India not only has failed to stop the border killings but at times has even justified them. The statement by India’s External Affairs Minister, S. Jaishankar, during his recent visit to Dhaka, that “our shared objective should be a no crime-no death border...”, raises questions as to why killings, and not due legal proceedings, are being followed in tackling border crimes.
•The Modi government’s proposal to implement the National Register of Citizens across the whole of India reflects poorly on India-Bangladesh relations. It is not comprehensible why people of all religions and ethnicities barring Muslims will be excluded from the Bill. It remains to be seen how India addresses the deportation of illegal Muslim immigrants, some of whom claim to have come from Bangladesh.
•Sri Lanka, Nepal and the Maldives, once considered traditional Indian allies, are increasingly tilting towards China due to the Asian giant’s massive trade, infrastructural and defence investments in these countries. In spite of its ‘Neighbourhood First Policy’, India has been losing its influence in the region to China. Bhutan also does not abide by Indian influence as evinced by its withdrawal from the BBIN (Bhutan-Bangladesh-India-Nepal) motor vehicles agreement. China, in lieu of its cheque-book diplomacy, is well-entrenched in South Asia, including Bangladesh, with which it enjoys significant economic and defence relations.
Keeping the momentum going
•India-Bangladesh relations have been gaining positive momentum over the last decade. As Bangladesh celebrates its 50 years of independence (March 26, 1971), India continues to be one of its most important neighbours and strategic partners. As the larger country, the onus is on India to be generous enough to let the water flow and ensure that people are not killed on the border for cattle even if it is illegal when there are appropriate means for justice. These small but important steps can remove long-standing snags in a relationship which otherwise is gradually coming of age in 50 years. To make the recent gains irreversible, both countries need to continue working on the three Cs — cooperation, collaboration, and consolidation.
