📰 State obliged to facilitate access to education: Supreme Court
Bench orders admission to two students in medical colleges.
•Access to professional education is not government largesse, the Supreme Court said in a judgment.
•A Bench of Justices D.Y. Chandrachud and M.R. Shah pronounced the verdict in favour of two students from Ladakh, who were nominated by the Union Territory administration for MBBS studies.
•They were allocated seats in the prestigious Lady Hardinge and Maulana Azad medical colleges. However, they were not admitted.
•The students moved the top court for justice, saying their fundamental right to education was at the whims and fancies of the government authorities.
•“We would like to take this opportunity to underscore the importance of creating an enabling environment to make it possible for students, such as the petitioners, to pursue professional education. While the right to pursue higher (professional) education has not been spelt out as a fundamental right in Part III of the Constitution, it bears emphasis that access to professional education is not a governmental largesse,” Justice Chandrachud wrote in the judgment.
•The court said the State has an “affirmative obligation to facilitate access to education at all levels”.
•“This obligation assumes far greater importance for students whose background (by virtue of such characteristics as caste, class, gender, religion, disability and geographical region) imposes formidable obstacles on their path to accessing quality education,” the recent judgment read.
Panel’s vision
•The court referred to the vision envisaged by the Committee on Economic, Social and Cultural Rights. “As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities,” the court said, referring to one of the Committee’s clauses.
•The court ordered that the students be admitted within a week. It was government policy last November to allot one seat each at Lady Hardinge and Maulana Azad medical colleges from the Central pool.
•The court noted that India was a signatory to the United Nations International Covenant on Economic, Social and Cultural Rights.
•“Pursuant to these obligations, which India has undertaken by being a signatory to the covenant, the Union shall ensure proper coordination so that students allocated colleges under the Central pool seats are not put to hardship in enrolling once they have been duly allocated their seats,” the court noted.
•“Financial hardship should not prevent the students from getting admission in terms of the allocation which has been made in their favour legitimately under the Central pool seats,” it added.
Nodal officer
•The apex court further recommended the appointment of a nodal officer to ensure that students duly nominated under the Central pool seats were admitted in their chosen course of study.
•“Such an institutional framework will ensure that students are not left in the lurch due to lack of help in securing their legitimate admission to the appropriate course,” the court reasoned.
📰 Twin troubles: On prices and industrial production
Inflation should not be allowed to undermine purchasing power, overall economic stability
•The latest official data on retail prices and industrial production released on Monday provide cause for disquiet, given that inflation continues to accelerate and output at the country’s factories contracted for a second straight month. While inflation quickened to a four-month high of 5.52% in March, as per provisional data from the National Statistical Office, the NSO’s quick estimates of the Index of Industrial Production for February show output including at mines, the manufacturing sector and electricity generators shrank 3.6%, following on from January’s 0.9% contraction. Consumer Price Index numbers show that stubbornly high food and fuel costs remain the main drivers of price pressures. Pulses and edible oils, key kitchen staples and vital nutritional sources for proteins and fats, have been climbing almost dizzyingly for the last few months, a fact not lost on the RBI. While inflation in pulses accelerated to 13.3%, from 12.5% in February, oils and fats saw a more than 400 basis points surge to 24.9%. In its policy statement this month, the central bank hoped that arrivals from the rabi harvest as well as imports would likely augment supply, helping moderate prices of pulses. Similarly, on edible oils the RBI is rather optimistically banking on the government to cut import duties and offer incentives to boost domestic productivity to counter the heightened inflation. With meat and fish, and eggs yet again posting double-digit increases, inflation in the food and beverages category quickened almost 100 basis points to 5.24%.
•Disconcertingly, transport and communication also saw a more than 100 basis points acceleration to 12.6%, and this despite the pump prices of petroproducts remaining virtually frozen through the month, ahead of the March 27 start of Assembly elections. The most plausible explanation is that the freight and urban transport sectors saw a lagged pass-through of the preceding months’ steep increases in automobile fuel costs. Price pressures are unlikely to ease significantly in the near term, unless the Centre and the States bite the bullet by agreeing to forego some near-term revenue from petroproducts and reduce fuel taxes. The RBI, which has been stridently seeking a reduction in these levies, foresees inflation averaging 5.2% in the April-June quarter. Separately, the IIP data shows mining continuing to backslide, manufacturing struggling for traction with output of capital goods, construction gear and consumer non-durables all contracting in February. And if one considers that these data sets are yet to reflect the likely disruptions caused by the upsurge in COVID-19 infections and the local containment measures, the signs are even more worrying. Policymakers face tough choices in trying to nurse back demand. And they must do this without letting quickening inflation undermine purchasing power and overall economic stability.
The findings based on the IHDS on castes and their trust in State governments, the judiciary and the police are revealing
•Trust impacts income and growth through markets and public institutions. There is a positive relationship between trust and the development of financial markets. Operation of these markets is contingent on trustworthiness of debtors, as legal methods of recovery of dues are fraught with delays and heavy expenses. Turning to labour markets, higher trust manifests in ‘higher levels of cooperative relations between labour and management and higher levels of unionisation. In fact, firms that have unions representing their employees are better able to adapt to new management methods, and show better productivity. Evidence suggests a strong positive correlation between trust and the quality of the legal system. There is a similar correlation between trust and the quality of governance’.
•Here, our focus is on whether trust in institutions such as state government, judiciary and police varies by caste. We rely on the India Human Development Survey 2015 (IHDS).
Key term is confidence
•A unique feature of the 2005 and 2012 rounds of the IHDS is that they ask a question on trust. Trust in public institutions is measured in terms of levels of confidence: a great deal of confidence, only some confidence and hardly any confidence.
•Caste hierarchy reflects socio-economic status. Brahmins are at the top, followed by High Castes, Other Backward Classes/OBCs, and then the deprived including Scheduled Castes/SCs and Scheduled Tribes/STs. The residual category of Others is mixed but akin to High Castes. Hence, General combines Brahmins, High Castes and Others, while other castes are as stated. Although affirmative action (e.g., quotas for SCs, STs and OBCs in education and public sector employment) has benefited these groups, segments of SCs and STs are still among the most deprived and vulnerable to poverty.
•A vast majority of households surveyed lacked confidence in State governments in 2012. There is a sharp reversal in the case of the judiciary. A large majority reported a great deal of confidence, a moderate proportion had only some confidence and an extremely small proportion had hardly any confidence. Yet another contrast emerged in the case of the police. A low proportion had a great deal of confidence in it, a majority had only some confidence and a more than moderate proportion had hardly any confidence. Thus among these institutions, the most trusted was the judiciary, followed by State governments and then police.
•To avoid circularity, trust in institutions is for 2012 and the caste hierarchy is for 2005. In the composite caste category, General, the highest proportion (under half) had only some confidence, under 30% had a great deal of confidence while about a quarter had hardly any confidence. A high proportion of OBCs also reported a great deal of confidence, a much higher proportion displayed a great deal of confidence and a much lower proportion had hardly any confidence. In sharp contrast, among SCs, the highest proportion (under 45%) displayed a great deal of confidence, a smaller proportion had only some confidence, and a much smaller proportion with hardly any confidence. STs, however, display a pattern not dissimilar to OBCs.
Quota as a reason
•An important issue is why do SCs display so much confidence in State governments? One reason is quotas. Another is a conjecture. While those higher-up in the socio-economic hierarchy are likely to have other options (stemming from relative affluence), SCs are largely reliant on state munificence. STs, in contrast, while also dependent on quotas, are so isolated that they have limited experience of social safety nets.
•In striking contrast to trust in State governments, trust in the judiciary is highly pervasive with a slight variation across castes. For each caste, a large majority displayed a great deal of confidence, with nearly three-fourths of STs reporting a great deal of confidence. The proportion of those with hardly any confidence was extremely low, ranging between 5% and 7%. These findings are indeed surprising given the judicial overload of cases and prolonged delays.
•Yet another striking contrast emerged for the police as a law enforcement agency. A great deal of confidence varied within a narrow range of 13%-18%, with the lowest among STs. Over 30% displayed hardly any confidence, with the highest among SCs and STs. This is not surprising given rampant corruption and discrimination against lower castes.
Need for inclusion
•One component of trust is shaped by beliefs inherited from earlier generations, and another by a contemporaneous environment. Trust in these institutions rose between 2005 and 2012. However, recent accounts indicate a sharp erosion of trust, presumably because of State government policies that are far from inclusive, judicial verdicts that do not conform to high standards of autonomy and fairness, and police actions that violate rights of citizens, and are often brutal. While inculcation of initial beliefs is bound to be slow, transition to a policy environment that is inclusive and transparent is daunting too but growing awareness among the citizens is likely to facilitate it.
📰 It’s time to enact a Siras Act
It would do justice to those convicted in the LGBTQ+ community, including Ramchandra Siras
•A law to accord an ex post facto pardon to those who were convicted under Section 377 of the Indian Penal Code (IPC) would do poetic justice to the LGBTQ+ community and Professor Ramchandra Siras. What happened to Siras is a perfect example of the persecution faced by the LGBTQ+ community in India. He was a Professor and head of the Department of Modern Indian Languages at Aligarh Muslim University. On a winter night in 2010, two men trespassed into Siras’ house and caught him having consensual sex with another man. Siras was suspended by AMU for “gross misconduct”. Hansal Mehta’s critically acclaimed biopic, Aligarh (2015), portrayed the social ostracism and mental trauma suffered by Siras. Even though he won his case against the university in the Allahabad High Court and got his job back, Siras died a mysterious death on April 7, 2010.
Alan Turing law
•From Oscar Wilde to Alan Turing, many well-known as well as unknown people were haunted by anti-LGBTQ+ laws, and many jurisdictions repented later. A memorial in honour of the gay and lesbian victims of National Socialism stands in the city of Cologne in Germany today. The U.K. passed the Alan Turing law in 2017, which grants amnesty and pardon to those convicted of consensual same-sex relationships. The law is named after Alan Turing, the computer scientist who was instrumental in cracking intercepted coded messages during World War II and was convicted of gross indecency in 1952. The Alan Turing law provides not only a posthumous pardon but also an automatic formal pardon for living people.
•R. Raj Rao, in Criminal Love?: Queer Theory, Culture and Politics in India (2017), says homosexuality has always been looked upon with disfavour by three agencies universal to mankind: religion, law and medicine. Among them, the law committed the “most unkindest cut of all”. From 1862, when Section 377 of the IPC came into effect, until September 6, 2018, when the Supreme Court of India ruled that the application of Section 377 of the IPC to consensual homosexual behaviour between adults was “unconstitutional, irrational, indefensible and manifestly arbitrary”, the LGBTQ+ community was treated as a criminal tribe in India.
Resurrection of Naz Foundation
•The Delhi High Court’s verdict in Naz Foundation v. Govt. of NCT of Delhi (2009) resulted in the decriminalisation of homosexual acts involving consenting adults. The Court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class. Justice A.P. Shah observed in the judgment that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
•“Specifically, Naz Foundation understood that in promising non-discrimination and equal treatment before the law, the Constitution spoke to a past — and a present — where certain personal characteristics had become the sites of structural and systemic exclusion, marginalisation, disadvantage, and indignity. The jurisprudence of Naz Foundation was an attempt to fulfil the constitutional purpose of redressing this reality,” writes Gautam Bhatia in The Transformative Constitution: A Radical Biography in Nine Acts (2019). In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs. Naz Foundation (2013), reinstated Section 377 in the IPC. Fortunately India witnessed the resurrection of Naz Foundation through the apex court’s judgment in Navtej Singh Johar & Ors. v. Union of India (2018).
•The spirit of Navtej Singh Johar should be pushed further. To make amends for the excesses committed against the LGBTQ+ community in the past and present, the Indian state should enact a ‘Siras Act’ on the lines of the Alan Turing law. Ex post facto pardon may be a novel concept in India, but it would do justice, even though delayed, to the prisoners of sexual conscience and Siras.
📰 Why less may be more for India and China
A conversation between India and China, driven by hard talk and finding shared interests, even if modest ones, may be amply rewarding
•“Lower the expectations” might not seem a very ambitious prescription for the immediate future of India’s troubled relations with China. It may, however, be just the right tonic to guide the way forward, as both countries seek a new equilibrium after a major rupture in relations following the border crisis.
•That was the consensus shared by the two sides at a Track-II dialogue held in early April, possibly the first of its kind to be held after the border crisis. This brought together former ambassadors and military officials from both sides, organised by the Ananta Aspen Centre in New Delhi and the China Reform Forum in Beijing, which is affiliated to the Central Party School.
Hampered by expectations
•The chequered history of India-China relations is rife with examples of how misplaced expectations have burdened the relationship, often only leading to recurring disappointment. In the 1950s, relations veered from being led by idealised notions of restoring some pan-Asian, civilisational partnership — one that, in truth, never really existed through centuries of historical exchanges — to confrontation and ultimately war in 1962.
•For an example of more recent vintage, the holding of two “informal summits” in Wuhan in 2018 and in Mamallapuram near Chennai the following year, which were certainly valuable exercises in getting the leaders of both countries to engage with each other directly and in leading to two years of largely undisturbed peace on the borders, was seen as marking the start of another new promising era in ties, only to turn out to be another false dawn.
•Rather than once again veer from high expectation to familiar disappointment, perhaps the search for a new equilibrium with China should instead be driven by modest goals, led by conversations driven by hard talk and self-interest, rather than lofty goals of partnership.
At the core
•At the recent dialogue, the shared view was that key to arriving at this new, more realistic state of relations will be managing three issues — the boundary question, trade, and the increasing impact of third-party and multilateral engagements on the two-way relationship. On all three fronts, setting the sights on limited goals may end up paying rich dividends.
•Consider the boundary dispute. Ten months after the clash at Galwan Valley, which marked the worst violence on the border since 1967, both sides are nowhere near full de-escalation. Initial optimism of a quick end to the crisis, following disengagement on the north and south banks of Pangong Lake, the most thorny of the disputes in eastern Ladakh, has now given way to an apparent stalemate. The readouts from both sides after the eleventh round of talks between Corps Commanders on April 9 suggested as much, with no joint statement – for the first time since the sixth round in September – and no mention from the Chinese side of early disengagement.
•At the Track-II dialogue, Chinese speakers, unsurprisingly, offered no clarity on what prompted the People’s Liberation Army’s mass mobilisation along the Line of Actual Control (LAC) last summer and the hammer blow dealt to agreements that ensured decades of a carefully managed peace. Was the deployment tactical — an attempt to push back India from the LAC by stealth that subsequently backfired — or a strategic message? We are still none the wiser.
•What the crisis did make clear is there is certainly no appetite in China at the moment for a final settlement of the boundary question. That is also the view of most Chinese experts, who suggest it is to be left for the next generation, which means a prolonged period of continued uncertainty on the borders.
•The absence of a permanent peace does not, however, mean both countries are necessarily destined for conflict. What they do need, in the view of military planners of both sides, is small steps to restore a shattered trust. If China has made clear there is little likelihood of clarifying the LAC — a process that has been stalled for 19 years — one possible way forward is to, at least, clarify the most sensitive spots, and arrive at understandings, such as coordinated patrolling either by time or area. These are small steps that have, in the past, helped cool down the temperatures.
The view on trade
•On the trade front, the view in Delhi has shifted remarkably from what was, in the first few years of the Narendra Modi government, an all-out courtship of China Inc. — as hard as it is to imagine now, Chinese billionaires from Alibaba’s Jack Ma to Wanda’s Wang Jianlin all received audiences with the Prime Minister on their India visits — to talk now of “decoupling”.
•If the idea of roping in China as a major economic partner now seems premature in light of the many unresolved political problems, so is talk of a complete disengagement on trade. One only need look at the trade figures for a year that saw the biggest border crisis in decades. Trade reached $87.6 billion and China was India’s largest trading partner, with India importing $66.7 billion worth of machinery and medical equipment, among other goods, and exporting a record $20 billion to China, mostly ores to fill the appetite of China’s rebounding economy. Or, for that matter, at the prompt restoration of Chinese mobile phone company Vivo as the sponsor of India’s biggest cricket tournament after a suspension last year, even if the border crisis is nowhere near resolution.
•Jettisoning all activity with China is neither realistic nor prudent. Instead, what is needed is a clear-headed, all-of-government approach that decides where both sides can cooperate — infrastructure that has no security implications is an obvious area, as is clean energy given China’s capacities on solar and wind, to name but two — and other areas where Delhi may find it needs to tread with caution, such as the roll-out of 5G. On 5G, too, the problem is often reductively framed as a China one, when what is needed is a policy framework that is not aimed at merely one country but protects India’s interests without handing over the keys to the kingdom to any outside player.
•Finally, both sides need to have a clear conversation on how third parties and external engagement are an increasing factor. The Track-II dialogue made it clear how China is viewing relations with India through the prism of its relations with the United States that are its abiding priority. Beijing has increasingly hit out at what President Xi Jinping called “small circles” when he spoke to Davos, which has now become shorthand for U.S.-involved groupings including the Quad. India has its own grouses with China-involved “small circles” of which there are many, from the numerous small groupings in South Asia that China has convened over the past year, to certain multilateral efforts on Afghanistan that India has been kept out of.
Focus on shared platforms
•Rather than view every element of such engagements as a threat, that both sides would be better served having a conversation about what the red lines are was a shared view at the dialogue. Moreover, as relations stabilise, India and China could start injecting more energy into their own shared platforms such as BRICS, which, for instance, could come up with its own vaccine initiatives as the Quad has done. They could also revive their bilateral cooperation in Afghanistan, which began and ended after the Wuhan summit with a modest joint training programme for diplomats while more ambitious infrastructure projects that had once been imagined never took off.
•As both sides chart a course forward after last year’s rupture in ties, they may find a conversation that is driven by hard talk and finding shared interests, even if modest ones, more rewarding than bearing misplaced expectations. As India and China go back to the drawing board, less may indeed be more.
📰 Navigation with permission
Any state which wishes to conduct military exercises in an exclusive economic zone must first consult the coastal state
•On April 7, the U.S.’s 7th Fleet Destroyer, the USS John Paul Jones, conducted a ‘Freedom of Navigation Operation’ 130 nautical miles west of the Lakshadweep Islands inside India’s Exclusive Economic Zone (EEZ). Not only was this exercise conducted without requesting India’s consent, but the U.S. 7th Fleet noted in its press release that India’s requirement of prior consent is “inconsistent with international law”. In its response, India asserted that the UN Convention on the Law of the Sea (UNCLOS) “does not authorize other States to carry out in the Exclusive Economic Zone and on the continental shelf, military exercises or manoeuvres, in particular those involving the use of weapons or explosives, without the consent of the coastal state”. Owing to the different positions of the two countries, legal questions emerge here. The question is, can countries carry out military exercises in another country’s EEZ and if yes, subject to what conditions?
Understanding the law
•UNCLOS binds all its signatories and customary international law binds all states, subject to exceptions like the doctrine of persistent objector. Most of the provisions of the UNCLOS are the result of codification of the existing rules of customary international law. India is a party to the UNCLOS while the U.S. is not. As per the UNCLOS, EEZ is an area adjacent to the territorial waters of a coastal state where the sovereign coastal state has rights and duties relating to management of natural resources; establishment and use of artificial islands, installations and structures; marine scientific research; and protection of the marine environment.
•The present difference in legal interpretation brings into the picture Articles 58 and 87 of the UNCLOS. Article 58 (1) provides that in the EEZ, all States, whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines as well as other internationally lawful uses of the sea. Article 87 provides for freedom of the high seas under which all states have the freedom of navigation. However, the freedom of navigation is subject to the conditions laid down under the UNCLOS and other rules of international law. In addition to it, Article 58 (3) stipulates another qualification: “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State...” The relevant Indian law in this regard is the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones of India Act, 1976. Section 7 sub-section 9 of this Act recognises the freedom of navigation of the ships of all States but makes them subject to the exercise of rights by India within the zone.
•The declaration by India in 1995 also states that India “understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives, without the consent of the coastal State”. An ancillary question that emerges is the legal effect of such declarations. Article 310 of the UNCLOS does permit states to make declarations in order to explain the relationship between the Convention and their own laws, but such declarations should not “purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State”.
Negotiating concerns
•On a conjoint reading of Articles 58, 87 and 310, it can be argued that freedom of navigation cannot be read in an absolute and isolated manner. Given the nature of EEZ and the activities that a coastal state conducts in its EEZ, non-consensual military activities that hinder the lawful enjoyment of such rights need not be permissible. Also, a coastal state is naturally concerned about military exercises and manoeuvres posing a risk to its coastal communities, its installations or artificial islands, as well as the marine environment. Thus, any state which wishes to conduct such exercises must do so only in consultation with the coastal state since the coastal state is the best judge of its EEZ.
•Both India and the U.S. should negotiate such concerns for the maintenance of international peace and security. Riding roughshod over international obligations premised either in an erroneous interpretation of the law or the scope of its application will not only threaten friendly relations but also undermine the progress made towards codification and development of international law in an area such as the law of the sea, which is particularly complex.
