📰 No immunity for acts of vandalism: SC
It refuses Kerala plea in Assembly ruckus case
•The Supreme Court on Wednesday held that lawmakers cannot indulge in criminal acts on the Parliament or Assembly floors and then take cover behind the right to free speech.
•The court refused the Kerala government’s plea to withdraw prosecution of top Left Democratic Front (LDF)leaders accused of vandalism and wanton destruction of public property on the Assembly floor during a Budget speech in 2015.
•“Acts of vandalism cannot be said to be manifestations of freedom of speech and be termed as ‘proceedings’ of the Assembly. It was not the intention of the drafters of the Constitution to extend the interpretation of ‘freedom of speech’ to include criminal acts by placing them under a veil of protest,” a Bench of Justices D.Y. Chandrachud and M.R. Shah held in a 74-page judgment.
•Legislators cannot unleash violence, run riot in Parliament or a Legislative Assembly and then claim parliamentary privilege and immunity from criminal prosecution.
•Parliamentary privileges and immunities are not “gateways” for legislators to claim exception from the law of the land, especially criminal law, Justice Chandrachud, who authored the verdict, observed.
‘Law applies to all’
•Boundaries of lawful behaviour apply to all, including MLAs who hold responsible elected office in the Legislative Assembly.
•No member of an elected legislature can claim either a privilege or an immunity to stand above the sanctions of the criminal law, which applies equally to all citizens.
•The State government and the accused LDF leaders, including the present Kerala Education Minister V. Sivankutty, who were in the Opposition in 2015, had claimed parliamentary privilege, arguing that the incident occurred inside the Assembly hall. They claimed immunity from criminal prosecution. They argued that the prior sanction of the Speaker was necessary before the registration of an FIR by the police.
•The court dismissed the need for prior sanction from the Speaker as this was not a case of corruption.
•The accused MLAs are facing charges of criminal trespass, mischief and destruction of public property. Televised images from the day of the incident show legislators come to blows on the House floor and hurl chairs, computers and other public property soon after Finance Minister K.M. Mani began his budget speech during the UDF government’s tenure.
On first NEP anniversary, other proposals such as the Higher Education Commission and four-year degrees are still not ready.
•On the first anniversary of the National Education Policy (NEP) on Thursday, the Centre plans to officially roll out some initiatives promised in the policy, such as a credit transfer system that will allow multiple entry and exit options in higher education, as well as engineering programmes in regional languages. However, other promised reforms such as the Higher Education Commission of India (HECI), the four-year undergraduate degree, and the common university entrance test, are not ready yet.
•Prime Minister Narendra Modi will address policy makers as well as students and teachers in a video-conference event on Thursday to mark the anniversary, according to an Education Ministry statement. The initiatives he is expected to announce will improve the government’s report card on the policy’s implementation, which has also been slowed by COVID-19 disruptions.
•The Academic Bank of Credit will be rolled out on Thursday for students in over 290 top institutions from the current academic year 2021-22 onwards. All institutions in the top 100 of the National Institutional Ranking Framework as well as those who have achieved an A grade under the National Assessment and Accreditation Council will be allowed to participate in the credit transfer system, which will also allow multiple entry and exit options for students, according to senior Education Ministry officials. However, the proposal for four-year undergraduate degrees has run into some opposition, especially from faculty at the premier University of Delhi, and will also have to wait for the National Higher Education Curricular Framework, which is still being prepared, they said.
•Multidisciplinarity is also being encouraged with guidelines to be issued on Thursday to allow the merger of institutes as well as to give students the choice of taking subjects such as social sciences, music and sports while getting engineering degrees, or even get a minor degree in emerging areas while majoring in a different subject.
•Although premier institutions such as the Indian Institutes of Technology have balked at the idea of introducing courses in Indian languages, Mr. Modi will announce the launch of engineering degrees in regional languages in about 14 smaller institutions. He will also announce the establishment of the National Digital Education Architecture and National Education Technology Forum.
•“On the positive side, COVID has led to a vast increase in online education. Although it was envisaged in the NEP, no one thought digital education would pick up so quickly. On the other hand, there are of course some constraints [in NEP implementation] because there has been little physical interaction for over a year,” said Higher Education Secretary Amit Khare, commenting on the pandemic’s impact. He noted that while the government has made all preparations to roll out a common entrance test for all Central Universities, as promised under the NEP, it was postponed in order not to put students under further stress given all the other COVID-19 disruptions they have already faced this year.
•With regard to the National Research Foundation, a Cabinet note has been prepared and is likely to be considered in August. The HECI Bill, however, is still entangled in objections from State governments as it proposes a new centralised education regulatory regime.
•For school education, the NEP recommendation for a foundational literacy and numeracy mission has been carried out, although it has pushed back its target date by two years to 2026-27 given the school closures since March 2020. However, Mr. Modi will roll out Vidya Pravesh, a three-month play-based school preparation module for Class 1 students which was recommended by the NEP and gains greater importance given that the closure of pre-schools, nurseries and anganwadis means that most primary students have yet to step foot in a classroom.
•A competency-based assessment framework for Classes 3, 5 and 8 will also be announced for students of the Central Board of Secondary Education. In fact, the NEP’s recommendation for continuous assessment has been given a boost by the fact that year-end Board examinations have largely been cancelled due to the pandemic. On the other hand, NEP proposals that require additional funding such as a free breakfast for all government school students have been delayed by the budget crunch caused by the pandemic.
📰 ‘Deposits up to ₹5 lakh in ailing banks to be repaid in 90 days’
Cabinet approves deposit insurance law amendments on lenders in moratorium
•Depositors in ailing banks such as PMC Bank may get some relief soon, with the Cabinet on Wednesday clearing amendments to the country’s deposit insurance law to return up to ₹5 lakh of their savings within 90 days of the central bank’s imposition of a moratorium on a bank’s operations.
•“The Deposit Insurance Credit Guarantee Corporation Bill 2021 has been cleared by the Cabinet today,” Finance Minister Nirmala Sitharaman said in a briefing on Wednesday, adding that the Bill will be taken to Parliament in the ongoing session.
•“Accessing depositors money has been an issue of when it will be allowed and under what conditionalities. Normally, it takes about 8-10 years, after complete liquidation of the bank. Now, what we are saying is even if there’s a moratorium, this (90-day) measure will set in,” Ms. Sitharaman said.
•As per the proposed process, once a bank is in trouble, it will have to collect all the account details and balances and share it with the Deposit Insurance Credit Guarantee Corporation (DICGC) within 45 days. The Corporation will get another 45 days to check these details and process the claims.
•“Each depositor’s balance of ₹5 lakh is guaranteed for both principal and interest,” the minister said, adding that this would provide a significantly larger safety net for India’s bank customers compared to their global peers.
•“With the deposit insurance increased from ₹1 lakh to ₹5 lakh, it will cover 98.3% of all deposit accounts and 50.9% of all deposits’ value. Just compare this with what prevails outside — only 80% of deposits are insured with 20%-30% of deposit value globally,” she pointed out.
•The Deposit Insurance premium normally paid by banks to the DICGC is being raised from 10 paise for every ₹100 deposit, to 12 paise and a limit of 15 paise has been imposed. The minister said this was only an enabling provision and the determination of an increase in the premium payable would involve consultations with the RBI and require government approval.
•“From 2019 till now, for PMC Bank depositors, the government under Prime Minister Narendra Modi’s guidance has been working overtime to resolve the problem,” she said.
📰 Probing Pegasus: On Bengal ordering inquiry into snooping row
West Bengal government is right in ordering a judicial inquiry into the spyware scandal
•The institution of a judicial probe by the West Bengal government into allegations of surveillance using advanced spyware on potential Indian targets marks a significant political and legal pushback against the Union government’s attempts to deny the global media revelations and diminish the potent threat such practices pose to democracy. Given Chief Minister Mamata Banerjee’s penchant for the dramatic and her endless run-ins with the Centre, it may be easy to dismiss the act of a State government ordering an inquiry into what could be a large-scale intelligence-gathering programme of a state actor as mere political chutzpah. However, in the context of the Centre and the ruling BJP’s aggressive refusal to cede any ground on the growing demand for a credible probe into the use and misuse of Pegasus spyware, the West Bengal inquiry acquires both legal and political salience. The Union government claims that illegal surveillance is not possible in India and has not specifically admitted or denied the use of Pegasus, the spyware supplied by Israel’s NSO Group. Ms. Banerjee has rightly invoked the possible grave implications for democracy, public order, the independence of the judiciary and the autonomy of legislators while ordering an inquiry under the Commissions of Inquiry Act. Media reports suggest that those likely targeted included Prashant Kishor, the Trinamool Congress’s strategist during the recent Assembly polls, and Abhishek Banerjee, Ms. Banerjee’s nephew. Regardless of which agency or government was behind it, there are grounds to believe that part of the surveillance covered the State government’s territory, bringing into play its legitimate right to order an investigation.
•It is entirely a different matter that the two-member Commission, comprising Justice Madan B. Lokur, former judge of the Supreme Court, and Justice Jyotirmay Bhattacharya, former Chief Justice of the Calcutta High Court, may face severe constraints. For one thing, only some of the potential targets may testify and seek the Commission’s aid in getting their phones forensically examined for evidence of infection by Pegasus. Central agencies may not readily offer their cooperation. The Intelligence Bureau may not be permitted to join the probe, and even if it did, it may claim privilege over documents and records relating to its legitimate interception orders, citing national security and operational sensitivity. In a country where there is no parliamentary oversight over its intelligence agencies, it is unclear how far these agencies and its personnel would cooperate with a probe ordered by a State government. There have been instances — the Jain and Verma Commissions come to mind — of intelligence files being made available to judicial panels. Therefore, it will be both desirable and appropriate if the Centre itself ordered a wide-ranging judicial inquiry into the Pegasus scandal so that the nation has an opportunity to get at the truth.
📰 No need for a drastic population policy
Data from Assam and Uttar Pradesh show that fertility rates have been reducing over time
•Population policy is suddenly in the news in India with Bharatiya Janata Party-ruled States such as Assam and Uttar Pradesh proposing to bring in or bringing in draft legislation aimed at controlling their populations. The Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill of 2021 promotes a two-child policy, according to which those people having more than two children will be barred from contesting local body elections and become ineligible to apply for State government jobs. A similar law has also been proposed in Assam, where the Chief Minister has even announced a ‘population army’ to curb the birth rate in Muslim-dominated areas in lower Assam. The U.P. Chief Minister has said that the aim of the policy is to reduce the total fertility rate in his State.
•The Chief Ministers of these States don’t seem to have read the document on population projection, published by the Union Ministry of Health and Family Welfare in 2019. According to this document, U.P. will reach a replacement rate (the rate at which women give birth to enough babies to sustain population levels) of 2.1 by 2025, and Assam by 2020. If the replacement fertility rate has already been achieved in Assam and will be achieved by 2025 in U.P., what is the need for any drastic population policy?
Decreasing fertility rates
•The need arises because population policy is an important weapon in the arsenal of the Hindutva brigade to attack the Muslim population in the country. The Assam Chief Minister’s ‘population army’ in Muslim areas and the U.P. Chief Minister’s many utterances prove this. However, even on this score, their policy framework is wrong. According to the National Family Health Survey (NFHS)-2 data, the total fertility rate (TFR), which is the average number of children that women of reproductive age group have had in their lifetime, in 1998-99 in U.P. was 3.87 for Hindus and 4.76 for Muslims. In 2015-16, it decreased to 2.67 for Hindus and 3.1 for Muslims. This means that the TFR declined by 1.2 for Hindus and by 1.66 for Muslims, which is higher. The NFHS-5 data for 2019-20 for U.P. have not been published. When it is published, data will show that the fertility rate for both Hindus and Muslims has declined even further.
•The fertility trend for Assam is even starker. According to NFHS data, Assam had a TFR of 3.5 in 1992-93, which decreased to 1.9 in 2019-20. Even after such a drastic decline in TFR, the Chief Minister’s enthusiasm to decrease it even further has no merit other than scoring political points based on a distorted notion of religious demography. In 1998-99, the TFR for Hindus in Assam was 2.0, which declined to 1.59 in 2019-20. For Muslims, it declined from 3.05 to 2.38 in the same period. While the fertility rate of Hindus is less than the replacement level, the fertility rate of Muslims is near that level and will reach there in the near future without any policy intervention.
•The point is that fertility rate does not depend on religion. It depends on socio-economic characteristics like education, income, maternal and child health conditions, and other associated factors. The graphs above show this in a concise manner. We have taken the district-wise fertility rates for Hindus and Muslims in four States: U.P., Assam, West Bengal and Bihar (calculated from NFHS-4 2015-16 data). The horizontal axis shows the fertility rate for Hindus and the vertical axis shows the fertility rate for Muslims. It is clear from the graphs that there is a positive relationship between the fertility rates of Hindus and Muslims. In other words, in districts where Hindus have a high fertility rate, the fertility rate of Muslims is also high. This cannot be explained by religion but by socio-economic factors in these districts. It is also clear that there are districts in these four States where the fertility rate for Hindus is actually higher than that of Muslims. The fertility rate of Hindus is greater than Muslims in four districts of Assam, 11 districts of Bihar, 22 of U.P. and three of West Bengal. Therefore, to stigmatise Muslims in terms of population growth and breeding more children is a figment of the right-wing imagination and not supported by facts.
Preference for a male child
•The preceding discussion pointed out that the population control policy of imposing a two-child norm is not supported by data. However, it can have other unintended consequences. Generally, any discussion on fertility focuses on policy recommendations regarding increasing female education, which is no doubt important. However, a single-minded focus on this policy instrument ignores the issue of a preference for male children, which is dominant in the country. An earlier study of women’s fertility in Hindi heartland States showed that the proportion of graduate women who had two living daughters but still wanted another child was 23.7% in Bihar, 27.3% in U.P. and 28.3% in Rajasthan. This is nothing but an indicator of a preference for sons in a patriarchal and caste-dominated society. Given such a preference for male children, the two-child norm will only increase sex-selective abortions of girl children, and female infanticide, since couples will want to maintain both the two-child norm as proposed to be enacted by the government as well as their preference for sons.
Problem of ageing
•The experience of China also shows that if the state imposes its decision on families’ fertility choices, such a decision is bound to fail. With the one-child policy, the proportion of the aged population is increasing in China. Fewer younger workers are available, which might result in a slowdown of economic growth. As a result, the government has been forced to relax the one-child policy and adopt a three-child policy. In India too, as per the population projection report, the proportion of people aged 60 years and above will increase from 13.8% in 2011 to 23.1% in 2036. The two-child norm will only further aggravate the problem of ageing.
•The lesson to be drawn is that the decision on children is best made by the family, which can be nudged towards making choices that ensure a stable population growth. As a famous demographer argued, the fertility behaviour of a couple is a “calculus of conscious choice”. India’s decades-old population policy has achieved replacement level fertility in the country without taking any coercive measures. Governments should have faith in these time-tested policies and respect the choices of people rather than impose warped and motivated ideas regarding demography on the people.
📰 A judgment that must be taken in the right spirit
The striking down of the 97th Amendment is a reminder that the power to regulate cooperatives must stay with States
•A constitutional amendment is a rare event. There have only been 104 such cases of those in the 71 years since the Constitution came into being. Rarer still is when a court strikes down a constitutional amendment, an event which has occurred only seven times before last week.
•But such a moment has come to pass once again as Union of India vs Rajendra N. Shah, a judgment delivered by the Supreme Court of India on July 20, 2021. The 97th Constitutional Amendment was struck down, albeit in a limited manner.
The background
•The 97th Constitutional Amendment came into effect from February 15 2012, and brought about many changes to the legal regime of cooperative societies. The amendment added “cooperative societies” to the protected forms of association under Article 19(1)(c), elevating it to a fundamental right. It also inserted Part IXB in the Constitution which laid down the terms by which cooperative societies would be governed, in more granular detail than was palatable.
•The Constitution can be amended only by the procedure provided in Article 368. The amendment procedure requires a majority of the total strength of each of the Houses of Parliament and two-thirds majority of those present and voting. A proviso to the Article lists out some articles and chapters of the Constitution, which can be amended only by a special procedure. The special procedure requires that the amendment will also have to be ratified by the legislatures of half of the States. It is precisely on the grounds of violation of this additional requirement that the 97th Constitutional Amendment was challenged.
•It is important to locate this amendment in context. The idea that the cooperative sector ought to be controlled at the State level and not at the central or Union level goes back all the way to the Government of India Act, 1919 which placed cooperatives in the provincial list. This scheme carried forward into the Constitution with Entry 32 of the State List in the Seventh Schedule of the Constitution conferring power on the State legislatures to make laws pertaining to incorporation, regulation and the winding up of cooperative societies.
Central control
•But the Union government has been acquiring incrementally greater control of cooperative societies over the years. Cooperative banks have been brought under the purview of the Reserve Bank of India. The political intent of the Union Government for more active involvement in the cooperative sector is also apparent from the recently established Union Ministry for Cooperation.
•The statement of objects and reasons of the amendment Bill, which resulted in the amendment in question, cites the need for greater independence and transparency in the functioning of the cooperatives and inserted a number of provisions which provided for the regulation of cooperative societies.
•The Gujarat High Court struck down the amendment in 2013 on the grounds that it had failed to comply with the requirements under Article 368(2) by virtue of not having been ratified by the States and had also given an additional finding that the 97th Amendment violated the basic structure of the Constitution.
•The Union Government challenged the Gujarat High Court judgment before the Supreme Court, arguing that the amendment neither directly nor effectively changed the scheme of distribution of powers between the Centre and the States.
•The parties which had challenged the amendment in the High Court argued that Part IXB, inserted by the 97th Amendment impinged upon the legislative power of the States by casting mandatory obligations upon the State legislatures to legislate in a particular way in areas in which they ought to have had freedom. Some clauses of the newly inserted part of the Constitution would also override some existing State legislations.
•The court took the example of the 73rd and 74th Amendments which introduced the chapters on panchayats and municipalities, respectively. Those amendments, similar in impact on the legislative power of the States, had been passed by the special procedure involving ratification by State legislatures. The court noted that the procedure had not been followed in this case but clarified that the judgment is confined to the procedural lacuna and does not go into the question of the amendment being violative of the basic structure of the Constitution.
Making a distinction
•Having found this lapse in procedure, the judgment makes a distinction between cooperative societies operating in one State and multi-State cooperative societies and holds that while a ratification by half the State legislatures would have been necessary insofar as it applies to cooperative societies in one State, they chose not to go deeper into the question of whether the amendment also required ratification in respect of application to multi-State cooperative societies. The minority opinion considered that the provisions of the newly added part which pertain to multi-State cooperative societies could not exist independently of the parts which pertain to cooperative societies, and hence the whole amendment should be struck down.
•This now brings us to the question – can the Government get over this decision? In theory it would seem simple enough. The amendment has only been struck down on account of the right procedure not having been followed and another amendment can be brought, but this time, going through the rigour of ratification by State legislatures. The National Democratic Alliance has a majority in 18 out of 28 State legislatures. The amendment which has now been struck down was an amendment of the United Progressive Alliance era, so it is not clear as to whether there will be any significant political opposition to the amendment if it is brought again.
A sector best left alone
•Which brings us to the next question – should they? The cooperative sector has always been in the domain of the States or provinces. The organising principles and mechanism of these cooperatives differ from area to area and depend on the industry or crop which forms the fulcrum of the cooperative. Homogeneity in this area would only result in the creation of round holes in which square pegs no longer fit. They also would not really serve to break the control some political interests have taken over cooperatives. It is best that the Government takes this judgment in the right spirit and stays away from further meddling in the cooperative sector, notwithstanding the creation of the new Ministry.
📰 Oxygen for fiscal federalism
A special rate could be levied to the States to enable them to raise more resources during the pandemic
•James Madison, who created the basic framework for the U.S. Constitution, once said, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
•But Indian federalism is very different. The British lawyer and academic, Sir Ivor Jennings, was of the view that India has a federation with a strong centralising policy. Nonetheless, India maintained its limited federal characteristics for a fairly long time. Those characteristics are now disappearing in the Modi era.
Disregarding an obligation
•At the time of introducing the new indirect tax regime, the Goods and Services Tax (GST) law assured States a 14% increase in their annual revenue for five years (up to July 1, 2020). But the Union government has deviated from the statutory promise and has been insisting that States avail themselves of loans. Kerala is entitled to a GST compensation of ₹4,041 crore for the financial year 2020-21. But the Union government has been disregarding this obligation. The future interest liability of these loans should not be placed on the shoulders of the States. Moreover, the borrowing limit of States, as per the Fiscal Responsibility and Budget Management Act, should not be built into these loans. This policy needs clarity.
•Last year, the Union government increased the borrowing ceiling of the States from 3% to 5% for FY 2020-21. But conditions are attached to 1.5% of the 2% of increased ceiling. It is the States which have to bear the burden of welfare and relief measures during the pandemic. Attaching conditions for expenditure out of the borrowed amount would clip the wings of the States and goes against the principle of cooperative federalism.
•The Fifteenth Finance Commission had recommended ₹2,412 crore as a sector-specific grant and ₹1,100 crore as a State-specific grant for Kerala. But the Union government has not taken any steps to release these amounts. The expenditure rules attached to the Disaster Management Fund are unviable. The rules could be amended to ease expenditure. The Corporate Social Responsibility Fund could be remitted to the Chief Minister’s Relief Fund.
•As per the Constitution (One Hundred and First Amendment) Act, compensation on account of the implementation of GST will be available for a period of five years. Compensation beyond five years requires a constitutional amendment. The GST Act says it is a law to provide for compensation to the States for the loss of revenue arising on account of the implementation of the GST for a period of five years or for such period as may be prescribed on the recommendation of the GST Council.
Urgent measures
•The present compensation period will end in 2021-22. Beyond this period, it is going to be very difficult to convince the Union government to provide compensation as there is no constitutional obligation to do so to the States. This will create serious financial stress to the States, especially to those which require higher compensation.
•As per Section 4(f) of Article 279A, the Union government can consider introducing any special rate to raise additional resources during the pandemic (any natural calamity or disaster). Section 4(f) says: “The Goods and Services Tax Council shall make recommendations to the Union and the States on — Any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster”. Article 279A was inserted through the Constitution (One Hundred and First Amendment) Act.
•Hence, a special rate could be levied for a specified period in order to raise additional resources to meet the challenges posed by COVID-19 with the approval of the GST Council. These are some urgent necessary measures that are to be taken for pumping oxygen to fiscal federalism in India.
