📰 Supreme Court in majority verdict quashes part of Constitution inserted by 97th amendment on cooperatives
A Bench of Justices R.F. Nariman, K.M. Joseph and B.R. Gavai which pronounced the verdict said, “We have struck down part IX B of the Constitution related to cooperative societies but we have saved the amendment”
•The Supreme Court on July 20 in a 2:1 majority verdict upheld the validity of the 97th constitutional amendment that deals with issues related to effective management of cooperative societies but struck down a part inserted by it which relates to the Constitution and working of cooperative societies.
•A Bench of Justices R.F. Nariman, K.M. Joseph and B.R. Gavai which pronounced the verdict said, “We have struck down part IX B of the Constitution related to cooperative societies but we have saved the amendment.”
•Justice Nariman said, “Justice Joseph has given a partly dissenting verdict and has struck down the entire 97th constitutional amendment.”
•The 97th constitutional amendment, which dealt with issues related to effective management of co-operative societies in the country was passed by Parliament in December 2011 and had come into effect from February 15, 2012.
•The change in the Constitution has amended Article 19(1)(c) to give protection to the cooperatives and inserted Article 43 B and Part IX B, relating to them.
•The Centre has contended that the provision does not denude the States of its power to enact laws with regard to cooperatives.
•The top court’s verdict came on the Centre’s plea challenging the Gujarat High Court’s 2013 decision striking down certain provisions of the 97th constitutional amendment while holding that Parliament cannot enact laws with regard to cooperative societies as it is a State subject.
40 crore people still vulnerable to infection; over 50% of children surveyed found to be seropositive
•While two-thirds of the general population had SARS-CoV-2 antibodies, a third does not have antibodies, making approximately 40 crore people still vulnerable to infections, Indian Council of Medical Research (ICMR) Director General Balram Bhargava said on Tuesday.
•Presenting the results of the fourth national COVID serosurvey, Dr. Bhargava said States, districts and areas without antibodies run the risk of infection waves.
No rural-urban divide
•“The survey noted that more than half of the children (6-17 yr) were seropositive while sero-prevalence was similar in rural and urban areas. It was also found that 85% of health care workers (HCWs) had antibodies against SARS-CoV-2 while one-tenth of the HCWs were unvaccinated,” he said.
•On the implications of the latest survey means for the general public, Dr. Bhargava said while offering a ray of hope, the survey makes it clear that there is no room for complacency.
•“This national serosurvey is not a substitute for local (State/district) variations. State heterogeneity indicates the possibility of future waves of infection. We strongly suggest that societal, public, religious and political congregations be avoided, non-essential travel be discouraged and travel should be undertaken only if fully vaccinated,” the ICMR chief said.
•He added that the country has to work towards ensuring the full vaccination of all healthcare workers while accelerating vaccination coverage in vulnerable population groups.
•“There is also an urgent need to ensure adherence to non-pharmaceutical interventions while continuing to track COVID-infection in SARI cases in district hospitals,” said Dr. Bhargava.
Across 70 districts
•For the survey 28,975 adults and children aged 6-17 years were surveyed along with 7,252 HCWs and was conducted in same 70 districts across 21 States, where the three earlier rounds were done.
•“10 villages or wards from each district, 40 individuals per village or ward, 400 individuals aged 6 or above per district and 100 HCWs per district from district and sub-district hospitals were covered for the survey,” he explained.
•Responding to a question about the reopening of schools, Dr. Bhargava said it would be better to open the primary schools first as young children seem to show a better tolerance against the virus. However, he noted that it should be done after ensuring that the staff associated with school re-opening are fully vaccinated.
📰 Sharing during scarcity: On Krishna and Godavari River Management boards
A.P. and Telangana must focus on water and energy efficiency rather than on new projects
•The Union Ministry of Jal Shakti’s gazette notification on the jurisdiction of the Krishna and Godavari River Management Boards over projects and assets in the fields of irrigation and hydropower, though delayed, is a welcome development. The two river boards can now administer, regulate, operate and maintain 36 projects in the Krishna Basin and 71 in the Godavari to ensure judicious water use in Andhra Pradesh and Telangana. The arrangement is expected to leave the working of Water Resources or Irrigation Department in the States intact. The seven-year delay to get the notification only reflects the tense equations between the two States over river water sharing. The States have been locked in a battle of sorts over the utilisation of Krishna water, with Andhra Pradesh proposing a few projects, including a lift irrigation scheme for Rayalaseema, a region from where Chief Minister Y.S. Jagan Mohan Reddy hails, and, in turn, Telangana coming up with half-a-dozen projects of its own. Although the Union Minister of Jal Shakti, Gajendra Singh Shekhawat — the chairperson of the apex council of the two river boards — had said that the Centre would go ahead with notifying the jurisdiction of the boards, it took nine months to see whether a reluctant Telangana would fall in line. The seven-year-old State had held the view that the notification should flow from finalisation by a tribunal on Krishna water sharing by the two States that would enlarge the scope of reference of the existing Krishna Water Dispute Tribunal (KWDT)-II. Telangana had even moved the Supreme Court but the Centre said it would consider Telangana’s request only if it withdrew its petition which it did. In the process, Telangana wanted its complaint to be referred to the current Tribunal to avoid duplication of inquiry.
•The Centre must now see to it that the empowered Boards function in a fair manner, as the Union government’s decision will be final with regard to matters concerning jurisdiction of the two bodies. Both States have their own justification to pursue new water and power projects as several areas await economic development. Rayalaseema is a dry region and it was grievances over poor utilisation of the two rivers in then undivided Andhra Pradesh that was a factor that led to the bifurcation. At the same time, the two States should instead focus on water and energy conservation and improving the efficiency of irrigation schemes and hydel reservoirs. Given the adverse impact of the COVID-19 pandemic on the finances of the Centre and in States, Telangana and Andhra Pradesh do need to consider these alternatives and low-cost options. After studying the experiences of the revamped Boards, the Centre should look at turning the much talked-about concept of river basin organisations into a reality.
📰 Spy in hand: On Pegasus spyware issue
The Govt. must come clean on the issues raised by revelations of phone surveillance
•At least a 1,000 Indian phone numbers are in a list of potential targets of surveillance using the Pegasus spyware sold by Israeli company the NSO Group to “vetted governments” with the approval of the Israeli government. Of these, 300 numbers have been verified; 22 phones were subjected to forensic analysis by Amnesty International and peer reviewed by University of Toronto’s Citizen Lab. Of these, 10 were clearly established as being targeted by Pegasus; eight of the other 12 yielded inconclusive results. The evidence is strong, and the credibility of these revelations is extremely high. Indian citizens were indeed targets of a vicious, abominable and uncivil surveillance campaign by a government entity, Indian or foreign. The buck stops with the Government of India. Instead of coming clean and explaining what it intends to do to protect citizens, the GoI has fallen back on a disingenuous claim that no illegal surveillance is possible in India. There are legal provisions for intercepting communication and accessing digitally stored information in the interests of national security and public safety. The capture of a handheld machine by Pegasus turns that into a real-time spy on the target who can be watched over and followed every step. This surveillance is total, into their private and intimate lives, which have no bearing on any public interest.
•The cohort of people who were potential targets — journalists, politicians, probably a Supreme Court judge and a former Election Commissioner — does not indicate that the surveillance was necessitated by national security or public safety concerns. It is safe to assume that no information regarding terrorism or Chinese intrusion can be obtained by spying on a woman who complained of sexual harassment by a former CJI. On the contrary, the composition suggests that private craving, turpitude and even voyeurism motivated the perpetrators. This violation is about privacy and much more. Information obtained illegally may have been used to compromise institutions, to steal elections, sabotage Opposition campaigns, and even dislodge an Opposition government. That the accused in the Bhima Koregaon case had their computers breached by unknown entities to plant evidence that the prosecution is now using against them is notable in this context. That state agencies can trample upon the lives of citizens in such manner while elected representatives plead ignorance is unsettling for a democracy. This is antithetical to the basic creed of democracy. The truth about these revelations must be unearthed through an investigation by a JPC or by the Supreme Court or any other credible mechanism. A starting point for the Government must be in clearing the air on the foremost question it is skirting around — has any Indian agency bought Pegasus?
📰 Accepting radical otherness
The erosion of our ability to accept the radical differences amongst communities has resulted in strife
•The U.S.-based Pew Research Center’s survey has thrown up an interesting finding on religious tolerance in India: Indians of all faiths, paradoxically, support both religious tolerance and religious segregation. Most Indians (84%) surveyed said that respecting all religions is very important to them and all religious groups must be allowed to practise their faith freely. Yet, a considerable number of them also said they preferred to have religious groups segregated and live and marry within their own community.
•This curious finding has resulted in a BBC Asia report stating that India is neither a melting pot (diverse cultures blending into one common national identity) nor a salad bowl (different cultures retaining their specific characteristics while assimilating into one national identity) but a thali (an Indian meal comprising separate dishes on a platter where they are combined in specific ways). The academic Pratap Bhanu Mehta concluded that the survey shows that though India is committed to religious diversity, it is “exclusionary and segmented in toleration”.
An ‘unheroic form of tolerance’
•Sociologist Ashis Nandy had developed a framework in the 2000s to understand these preferences. In a keynote address delivered in Australia (2010), Mr. Nandy observed that this form of living constituted a distinctly Asian cosmopolitanism. It had developed in regions which have to accommodate not just diversities but “radical diversities” that may prove to be dangerous if they are brought together in the same space. To accommodate these differences and peculiarities in the practices of different communities, everyday mechanisms of coping have evolved. This has resulted in a unique form of cosmopolitanism where differences can be accommodated without pressuring members of one community to be like the other based on a notion of universal brotherhood. On the contrary, members of one community can go to extraordinary lengths to help members of the other community maintain their own customary practices including their separate dining and dietary habits. Mr. Nandy called it a tolerance that is built into people’s everyday rhythms, is not backed by any ideological justification, and involves no sense of obligation to each other. He termed it an “unheroic form of tolerance” that allows interaction for various purposes without forcing one to declare brotherly love or adopt the other community’s practices.
•It is this kind of cosmopolitanism that Mr. Nandy found operative in Kochi. In one of his earlier essays on Kochi (2001), he explored why the city, which has close to 15 diverse communities, had not witnessed any major religious strife in its 600 years of recorded history. When he interviewed people, they reasoned that Keralites are educated or progressive. But a different story emerged when he probed them about their own life histories. “Kochi’s tolerance was, alas, based on mutual dislike,” he wrote. Every community had an account from its own past to show that it was better than the others. This included two Jewish communities, each of which generally prevented its children from marrying those from the other community. Hence, Kochi’s pluralism and communal amity included hostilities and distances which, “because they operate within a widely shared psychological universe, have certain in-built checks against mass violence.”
•This model of cosmopolitanism, where people accept “the otherness of the others”, is very different from the Enlightenment version which teaches us to divest ourselves of all prejudices so that we can emerge as the unbiased citizens of the nation state. The latter, a tougher version of tolerance, Mr. Nandy argued, forces us to hide our prejudices and preferences. As a result, everyday living becomes a struggle. It also leads to superficial forms of tolerance of diversity compatible with the demands of the middle class and the modern nation state where one can no longer accept radical diversities.
Another cosmopolitanism
•Mr. Nandy’s explanation helped me make sense of my traditional-minded mother’s attitude on the cow slaughter bill that became an issue in Karnataka. While she showed her distaste at the thought of cows being slaughtered for food, when asked if the practice should be banned, she said, “But how can you ban it. It is their food. They have been eating it for years.” Mr. Nandy’s framework allows us to make sense of such seemingly contradictory actions in our everyday lives. Is this form of living detrimental to the health of a society or is this another unique form of cosmopolitanism whose organic form must be recognised? Perhaps it is the erosion of our abilities to accept the “radical otherness” of people who are different from us that has resulted in much strife today.
📰 Pegasus is India’s Watergate moment
Intelligence gathering needs to be professionalised, parliamentary oversight introduced, and liberties and law protected
•“If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology.” Those words of Sen. Frank Church, who led one of two committees on intelligence and surveillance reform established in the aftermath of the Watergate scandal, are just as relevant in India today given the revelations of extensive surveillance — it is unclear by whom, but signs point to the Indian government — by the use of spyware on people’s phones. While there is much to be said about the international regulation of the unaccountable sale of spyware by shadowy entities such as the NSO Group, it is equally, if not more important to ensure that surveillance in India is made accountable.
Go easy on the salt
•My former colleague, Sunil Abraham, often likens surveillance to salt. A small amount of surveillance is necessary for the health of the body politic, just as salt is for the body; in excess, both are dangerous. While one cannot enjoy the liberties provided under the Constitution without national security, we must equally remember that national security is not meaningful if it comes at the cost of the very liberties such security is supposed to allow us to enjoy. Excessive and unaccountable surveillance imperils privacy, freedom of thought, of speech, and has a chilling effect on people’s behaviour, while shattering the bedrock of the rule of law upon which a constitutional liberal democracy is built.
•The government claims all its surveillance is authorised and justified. But then, the question arises: where are the prosecutions for terrorism, organised crime, espionage, etc., based on evidence from such surveillance? Who is ensuring that the surveillance is necessary and proportionate? Indeed, on the contrary, there are numerous examples of surveillance powers being misused for personal and political gain, and to harass opponents.
Earlier examples
•In 2012 in Himachal Pradesh, the new government raided police agencies and recovered over a lakh phone conversations of over a thousand people, mainly political members, and many senior police officials, including the Director General of Police (DGP), who is legally responsible for conducting phone taps in the State.
•In 2013, India’s current Home Minister was embroiled in a controversy dubbed “Snoopgate”, with phone recordings alleged to be of him speaking to the head of an anti-terrorism unit to conduct covert surveillance on a young architect and her family members without any legal basis. The Gujarat government admitted the surveillance, including phone tapping, but claimed it was done on the basis of a request made to the Chief Minister by the woman’s father. Yet, no order signed by the State’s Home Secretary — a legal necessity for a phone tap — was ever produced, and the Gujarat High Court shut down an inquiry into “Snoopgate” upon the request of the architect and her father, on the shocking basis that it “did not involve public interest”.
•In 2009, the United Progressive Alliance government swore in an affidavit in the Supreme Court that the CBDT had placed Niira Radia, a well-connected PR professional, under surveillance due to fears of her being a foreign spy. Yet, while they kept her under surveillance for 300 days, they did not prosecute her for espionage.
•Non-state actors such as the Essar group, have also been shown to engage in illegal surveillance. K.K. Paul, then the Governor of Meghalaya, noted complaints by telecom operators that private individuals were misusing police contacts to tap phone calls of “opponents in trade or estranged spouses”.
•There are dozens of such examples of unlawful surveillance which seem to be for political and personal gain, and have nothing to do with national security or organised crime. Yet, there are few examples of people being held legally accountable for unlawful surveillance.
The laws
•Currently, the laws authorising interception and monitoring of communications are Section 92 of the CrPC (for call records, etc), Rule 419A of the Telegraph Rules, and the rules under Sections 69 and 69B of the IT Act. Indeed, it is unclear when the Telegraph Act applies and when the IT Act applies. A limited number of agencies are provided powers to intercept and monitor.
•In 2014, the Ministry of Home Affairs told Parliament that nine central agencies and the DGPs of all States and Delhi were empowered to conduct interception under the Indian Telegraph Act. In 2018, nine central agencies and one State agency were authorised to conduct intercepts under Section 69 of the IT Act. Yet, the Intelligence Organisations Act, which restricts the civil liberties of intelligence agency employees, only lists four agencies, while the RTI Act lists 22 agencies as “intelligence and security organisations established by the central government” that are exempt from the RTI Act. Thus, it is unclear which entities count as intelligence and security agencies.
•Further, a surveillance alphabet soup exists, with programmes such as CMS, TCIS, NETRA, CCTNS, and so on, none of which has been authorised by any statute, and thus fall short of the 2017 K.S. Puttaswamy judgment, which made it clear that any invasion of privacy could only be justified if it satisfied three tests: first, the restriction must be by law; second, it must be necessary (only if other means are not available) and proportionate (only as much as needed); and third, it must promote a legitimate state interest (e.g., national security).
•In 2010, then Vice-President Hamid Ansari called for a legislative basis for India’s agencies, and the creation of a standing committee of Parliament on intelligence to ensure that they remain accountable and respectful of civil liberties. In 2011, the Cabinet Secretary in a note on surveillance held that the Central Board of Direct Taxes having interception powers was a continuing violation of a 1975 Supreme Court judgment on the Telegraph Act. That same year, parliamentarian Manish Tewari introduced a private member’s Bill to bring intelligence agencies under a legislative framework. That Bill soon lapsed. In 2013, the Ministry of Defence-funded think-tank, the Institute for Defence and Strategic Analysis, published a report, “A Case for Intelligence Reforms in India”, a core recommendation of which was: “the intelligence agencies in India must be provided a legal framework for their existence and functioning; their functioning must be under Parliamentary oversight and scrutiny”.
•In 2018, the Srikrishna Committee on data protection noted that post the K.S. Puttaswamy judgment, most of India’s intelligence agencies are “potentially unconstitutional”, since they are not constituted under a statute passed by Parliament — the National Intelligence Agency being an exception. In its 2019 election manifesto, the Indian National Congress — in what to my knowledge was a first for a national political party — called for parliamentary oversight of intelligence agencies.
Post-Watergate reforms
•The legacy of the Church Committee can be seen in the fact that the Snowden revelations in 2013 did not uncover any spying on Opposition politicians, journalists, judges, and human rights defenders for partisan political ends. What was shocking about the Snowden revelations was the extent of NSA’s surveillance, the overreach of the powers provided under the PATRIOT Act, as well as the lack of sufficient checks and balances provided by the Foreign Intelligence Surveillance Court. The Snowden revelations led to meaningful reform of that court, and controversial domestic surveillance provisions of the PATRIOT Act expired in 2020.
•We need such reforms in India, which are aimed at professionalising intelligence gathering, bringing intelligence agencies under parliamentary oversight, making them non-partisan, and ensuring that civil liberties and rule of law are protected. This is India’s Watergate moment, and the Supreme Court and Parliament should seize it.
