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Collegium Pushes Back Against Govt Stonewalling Judges’ Appointments; Government Can Monitor Internet Use 'In Real Time'
Jet Airways investor raided in Europe, Jharkhand's new domicile bill cements adivasi rights, half of all kids had no education during pandemic, study says pellet guns blinded 600+ in Kashmir
A newsletter from The Wire & Galileo Ideas | Contributors: MK Venu, Seema Chishti, Siddharth Varadarajan, Sidharth Bhatia, Sushant Singh and Tanweer Alam | Editor: Pratik Kanjilal
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Snapshot of the day
November 11, 2022
The Supreme Court Collegium has pushed back against the Union government’s tendency to cherry-pick its recommendation, or just go silent on appointments. The Supreme Court has issued a notice to the Union Law Secretary: “Keeping Collegium recommendations on hold not acceptable. Withholding consent for appointment of judges is becoming a device to compel candidates to withdraw their names,” the court noted. Recently, Law Minister Kiren Rijiju, made sharp and disparaging comments about the Collegium (see The Long Cable below). The notice was issued in a matter concerning delay in the appointment of Justice Dipankar Dutta, but Justice Sanjay Kaul pointed out in open court that there were 11 such instances, the earliest dating back to September, 2021.
Today, the JMM-Congress coalition government of Hemant Soren passed the Jharkhand Definition of Local Persons and for Extending the Consequential Social, Cultural and Other Benefits to such Local Persons Bill, 2022 that will make 1932 the cut-off date to decide the domicile status of people in the state. This is in line with demands by adivasi groups who say the current 1985 cut-off favours non-adivasis from outside the state who migrated to Jharkhand.
With the amendment of the Jharkhand Reservation of Vacancies in Posts and Services Act, 2001, it became the first state to have 77% reservation, far beyond the 50% cap. The reservation for OBCs whereas will be now 27%, that of SCs and STs will be 12% and 28%.
After three decades behind bars, the Supreme Court has ordered the premature release of all six convicts in the Rajiv Gandhi assassination case. In 1998, a TADA court had sentenced 25, including these six, to death, but the penalty was reduced to life imprisonment.
More than 82% of victims of pellet-gun injuries in Kashmir have lost vision in either one or both eyes despite treatment, a recent study has found. The study, published by the Indian Journal of Ophthalmology, has found that the “best-corrected visual acuity (BCVA) after treatment was counting fingers or worse in 82.4% of eyes.” The authors, led by Mumbai retina surgeon Dr S Natarajan, strongly advise against the use of pellet guns on civilians. This study is based on records of 777 victims of pellet gun-inflicted eye injuries in July-November 2016. Pellet guns were introduced around 2010 as non-lethal means to quell protests in Kashmir. Thousands of mostly youth have been shot at with these guns, and some have reportedly died after being shot at close range.
In Kheda, Gujarat, four Muslims were publicly flogged by the state police, who remain on duty while local Muslim men have been exiled. A month after the incident, the village of Undhela wears a deserted look ― 39 other Muslims have been ordered by the Nadiad Sessions Court not to enter Matar taluka, within which it lies, till March 31, 2023. The Quint reports that the accused secured bail from the Nadiad Sessions Court against a surety of Rs 15,000 each, on the condition that they would not enter Matar taluka until March 31, 2023.
In Assam, a police crackdown on European visitors has sparked the demand for an anti-conversion law. Ten Europeans were detained and deported, and the police investigated whether they were conducting ‘mass conversions’ to Christianity.
Deccan Herald traces the history of Arvind Kejriwal promoting Hindutva. Sameer Arshad Khatlani notes that Indonesia encourages multi-faith and pluralistic symbolism to promote multiculturalism and co-existence. This is exactly the opposite of what Kejriwal is attempting with his demand for putting the images of Hindu gods on currency notes, to trump the BJP’s Hindutva.
India appreciates the role of human rights defenders, journalists and activists in the democratic system but their activities should be in conformity with the law of the land, Solicitor General Tushar Mehta said at the Human Rights Council (HRC) in Geneva yesterday. Starting the fourth cycle of the Universal Periodic Review of India at the HRC, Greece, the Netherlands and Vatican City called upon India to ensure freedom of religion and end discrimination against human rights defenders and religious minorities.
As half-truths and absolute lies become the State’s weapons to divide people by religion, an initiative seeks to record aspects of Indian heritage—minus the distortions. In 2017, Md Umar Ashraf founded Heritage Times, an online bilingual initiative to document lost and forgotten aspects of Indian history ― especially the stories the State is actively trying to erase.
Tamil Nadu is “steadfast” in its opposition to the National Education Policy (NEP) and will frame an exclusive education policy for the state. School Education Minister Anbil Mahesh Poyyamozhi also said that students favour the existing dual language policy of Tamil and English, and oppose the three-language policy of the NEP. Tamil Nadu views it as a “ploy” to impose Hindi in the state, which has resisted it for decades.
The Economist reports that the Ladakhis who celebrated the revocation of Jammu and Kashmir’s statehood, turning it into two ‘union territories’ run directly from Delhi, are today a disappointed lot. “The bureaucrats who govern from Delhi have, if anything, less sense of the place and no more enthusiasm for accommodating local mores than politicians in Srinagar. Moreover, union territory status means only national elections determine who rules the region. Many locals now admit that they overestimated the benefits and underestimated the risks of their new status.”
Finally, the government admits that the Ladakh border crisis is alive. Asked if any progress was made since the Galwan clash in May 2020, External Affairs Minister S Jaishankar conceded, “In some senses, yes. There were multiple friction points and some dangerous military deployments but some of those issues have been worked out. There are others which still need to be worked on and it is important to persevere and keep pushing. The present state of affairs is not even in China's interest.” It sounds more like hope than strategy. In its lead editorial, the Times of India says that the “threat has not diminished”, and that a real two-front problem has developed.
Chinese incursions into India’s disputed boundary are not independent, random incidents but are strategically planned and coordinated to gain permanent control, a new study claims. Scientists from Northwestern University, USA, the Technical University of Delft in the Netherlands and the Netherlands Defence Academy compiled data about Chinese incursions from 2006 to 2020 and used game theory and statistical methods to analyse it. Using geospatial analysis, they identified 13 hotspots for incursions ― Depsang, Galwan, Hot Springs, Pangong, Demchok, Chumar, Barahoti, Sikkim, Tawang, Lhunze, Bishing, Anini and Kibithu. The first six are in the western sector and the last six are in the east, and Barahoti in the middle. Addressing tension in these hotspots, they said, could help defuse the conflict.
In Moscow, External Affairs Minister S Jaishankar discussed with his Russian counterpart Sergey Lavrov big pending payments, including for defence deals. The Hindu reports that ‘milestone’ payments linked to delivery timelines have been delayed for the S400 missile and stealth frigates. Central banks of the two countries have been discussing ways to overcome the impasse.
At COP27 in Egypt, developed countries are trying to rewrite the Paris Agreement. Diego Pacheco, spokesperson for Like-minded Developing Countries (LMDC) which includes India and China, has warned in an interview to Wire Science that they want to continue using the carbon space of developing countries.
India suddenly faces a glut of imported liquefied natural gas as high spot prices force industrial customers to seek cheaper fuel such as oil products and domestically produced gas. Storage tanks at the Dahej and Hazira LNG import terminals are near maximum capacity and scheduled deliveries may need to be delayed. The nation was forced to purchase its costliest LNG shipment ever in September.
Rural consumption remained slow in the July-September quarter (third quarter, or Q3) of calendar year 2022 (CY22) as volumes declined 3.6%, compared with a 2.4% fall in the April-June quarter of CY22. FMCG volumes declined 0.9%, compared with 0.7% in the quarter ended June. The value of the FMCG industry grew 8.9%, compared with 10.9% in the previous quarter.
Yoga evangelist and herbal businessman Ramdev has been stopped from manufacturing five ‘drugs’ in Uttarakhand and advertising them. State authorities said that the formulation sheet of the drugs — Divya Madhugrit, Divya Eyegrit Gold, Divya Thyrogrit, Divya BPgrit, and Divya Lipidom — “would be reviewed”.
Jet Airways’ new owner has put the onus for airline’s revival on banks. Slapped with additional liabilities, the Jalan-Kalrock consortium suggests lenders take a further cut in their share of the agreed payment. But with the banks playing hardball, there is less hope for the airline’s revival. And from Lichtenstein comes news that one of the new the airline’s new investors, Fritsch’s Property, has been raided by prosecutors in Austria, Switzerland and the Grand Duchy on suspicion of money laundering.
Arunachal Pradesh has more women voters than men, as per the draft photo electoral roll. The Northeastern state has 4,16,529 female voters, 12,253 more than 4,04,276 male voters.
Thirty-eight Congress defectors have been awarded tickets by the BJP in its list of 160 candidates for the Gujarat Assembly elections. That’s nearly a quarter of Modi’s candidates in his home state.
Ailing Rashtriya Janata Dal leader Lalu Prasad Yadav’s Singapore-based daughter Rohini Acharya will donate a kidney to her father. The RJD president, who has been suffering from multiple health problems, was advised to get a kidney transplant.
The waiting period for American visas is expected to fall by the summer of 2023 as US visa officials seek to issue 1 lakh visas per month. The number of applications could reach 1.2 million. The US has prioritised H (H1B) and L category visas for Indians and nearly 1 lakh slots were released recently for renewals. The wait time for B1, B2 (business and tourism) visas is also being brought down from nine months.
The ‘Samosa Caucus’ grew as five candidates of Indian origin were elected to the US House of Representatives in the 2022 midterm elections. Ami Bera, Raja Krishnamoorthi, Ro Khanna, and Pramila Jayapal, all Democrats, were re-elected. The new entrant is entrepreneur Shri Thanedar, who won from the 13th Congressional District of Michigan on a Democrat ticket.
Government can monitor all web traffic in real time
“All ILD [international long distance] and ISP [internet service provider] licensees are mandated to connect their systems to the CMS [Centralised Monitoring System] facility,” and “law enforcement agencies are provided facility for on-line and real-time monitoring of traffic,” the Internet Service Providers Association of India said in a filing with the Department of Telecommunications obtained by Entrackr under the RTI Act.
“This facility makes the obligation of providing physical space (10 workstations with access control) a redundant real estate facility at the Licensee gateway locations,” ISPAI said. This indicates that the Indian government and law enforcement agencies have full, always-on access to Indian internet users’ web traffic, and don’t have to visit an ISP’s premises to tap it. The CMS was proposed after the Mumbai attacks to widen surveillance capabilities. Earlier, Rajan Mathews, then director general of the Cellular Operators Association of India, revealed in an interview in 2020 that telecom operators were remotely providing phone call access to lawful interception requests.
SP submits proof that their voters disenfranchised
Samajwadi Party (SP) president Akhilesh Yadav has submitted evidence sought by the Election Commission to substantiate his allegations that the names of his supporters were removed from the voters’ list on a large scale in the 2022 UP Assembly polls. He demanded the inclusion of a representative of the Samajwadi Party in any probe which might follow.
With POCSO cases surging, court suggests lower age of consent
The Karnataka High Court observed that a significant number of cases are being registered under the Protection of Children from Sexual Offences (POCSO) Act because it does not acknowledge that adolescents can be involved in consensual sexual activities. The Dharwad Bench had also made a recommendation to the Law Commission for the age of consent to be lowered from 18 to 16. The court also said that many POCSO ‘offences’ are committed “as a result of or on account of lack of knowledge on the part of the minor girl and the boy.” The court said that students from Class 9 onwards should be educated about the POCSO Act and the Indian Penal Code.
Aadhaar proof to be updated every decade
The government has amended Aadhaar regulations, specifying that supporting documents must be updated “at least once” by Aadhaar holders 10 years after enrolment for “continued accuracy” of the Central Identities Data Repository (CIDR). While 134 crore Aadhaar numbers have been issued till date, how many must be updated is not known. Last year, about 16 crore updates were recorded.
The Long Cable
Law Minister seeks judicial accountability ― to his government, not the people
The appointment of judges to the Supreme Court and the High Courts by the judges’ Collegium was recently questioned by the Law Minister: “I am not critical about the judiciary or the judges, but I state a fact which is the reflection of the thinking of the common people of India… The Collegium system is opaque and is not accountable. Judges and lawyers too believe this.” The Law Minister’s concerns, while couched in general terms, reveal the government’s concerns ― it is perhaps not about accountability per se, but about accountability to the political executive.
The Collegium system, in which judges appoint judges, was brought in in 1999. While it has been criticised for being opaque, it has also insulated the higher judiciary from the whims of the executive. However, especially under the current government, it is seen that the government has been interfering with the choices of the collegium through the simple mechanism of not processing the names recommended by it and by not issuing the notification of appointment.
Senior Advocate Gopal Subramanian, who had served as solicitor general of India, was recommended for elevation to the Supreme Court by the Collegium in 2014 ― an uncontroversial and deserving appointment. However, in its first few months, the Modi government refused to appoint him. While the Collegium could have reiterated their recommendation, Subramanian chose to withdraw consent for his candidature, allowing a graceful end to the controversy created by the Law Ministry. This was the first occasion when the government sought, if not to establish its primacy, to exercise a veto over the appointment of judges it did not approve of.
Similar actions have been observed in the appointment of a number of judges, who have been denied High Court appointments by the simple expedient of not accepting the recommendation, which leads not only to the embarrassment of many who would have been an asset to the judiciary and to the country, but also casts an unnecessary shadow on judges who are appointed without demur. The pick-and-choose policy of the executive in accepting recommendations has led to this state of things when the recommendation of judges for appointment, as well as the sequence of recommendation and swearing in, which ultimately decides their seniority, becomes the subject of court corridor gossip and even public comment.
The new Chief Justice of India, Justice DY Chandrachud, has very fairly said that the collegium system, like any other, may not be perfect, but its shortcomings can be addressed. He told Indian Express, “While we work within the fold of that system… yet at the same time, there are several improvements which we can bring about because no institution in any constitutional democracy can lay claim to being perfect. So I think it’s a constantly evolving process.”
The government has repeatedly shown its tendency to interfere with the recommendations of the Collegium, most recently regarding the transfer of Odisha High Court Chief Justice S Muralidhar to the office of the Chief Justice of the Madras High Court. Justice S Muralidhar was originally transferred from the Delhi High Court immediately after passing certain orders at the height of the Delhi riots in 2020, which ensured protection and aid for riot victims and also pulled up the police.
When the Law Minister seeks accountability, he unfortunately seeks accountability to the government and not the people. The government’s concern about the ‘opaqueness’ of the collegium is a fulmination against judicial independence. The collegium may have its problems but it remains necessary for the present. Any reform can be brought in only with the concurrence of lawmakers, judges and lawyers. All of them have to necessarily function in harmony to defend and to ensure the interests of the biggest stakeholder of all, that is the ordinary citizen.
(Sarim Naved is a Delhi-based lawyer)
With the Gujarat Assembly elections due next month, the Election Commission has ordered the BJP state government to transfer six police officers, five of whom are serving in Ahmedabad. They are Mukesh Patel, SP, Ahmedabad City (Zone-4), Bhakti Thakar, DCP Traffic (Admin), Ashwin Chauhan, additional CP (traffic), Dr Harshad Patel, DCP (Control Room), and Premvir Singh, additional CP (Crime Branch). Earlier, the Gujarat government had ordered the transfer of 12 IPS officers, hours before the announcement of Assembly elections and imposition of the code of conduct. That is the Gujarat Model at play. The Election Commission talks of free elections because it’s hard to claim fairness.
Prime Number: 43%
At least 43% students in India did not have access to any online education for up to 19 months during the Covid-19 pandemic, shows a study mapping ‘Out of School Children (OOSC)’.
The RBI under governor Urjit Patel had warned the Modi government that electoral bonds could be used for money laundering, before the scheme was rolled out, but the Finance Ministry had said that their buyers could be identified if required. RBI had raised concerns in writing and during discussions with the government, according to documents accessed by transparency activist Commodore Lokesh Batra (retired) through an RTI query. Patel had written to Arun Jaitley warning that electoral bonds of the sort contemplated had the “possibility of misuse, more particularly through the use of shell companies”.
Op-Eds you don’t want to miss
The government’s education policy, which requires unquestioning acceptance of all that is ancient, could kill the ability to ask meaningful questions, which is what universities exist for, writes GN Devy.
Reciprocal recognition of ‘one China’ and ‘one India’ would help China and India resolve the boundary dispute writes Alex Lo and also “work greatly in Beijing’s favour against Washington’s new cold war in the Asia-Pacific.”
Chakshu Roy writes that governors and state governments usually lock horns over the discretionary powers of the former. But the framers of our Constitution intended that governors should act on the advice of their ministers, and play a limited role.
The historical hurt that the Hindu upper-caste elite has entertained about the affirmative action programme is now legal doctrine. It can have far reaching consequences, write Yogendra Yadav and Prannv Dhawan.
Lt Gen Bhopinder Singh (retd) writes that globally, federalism in democracies becomes weakened whenever the ‘cult of the strongmen’ prevails. ‘Double engine’ is yet another means of usurpation ― it’s legal, but it diminishes the last vestiges of the Opposition and vital dissent.
Korah Abraham writes that it is not easy for reporters to boycott press meets, despite the argument on social media about the “lack of solidarity” shown by the Kerala press after the governor showed the door to two TV channels.
Unrestricted use of social media has made targeted harassment, abuse and threats against women journalists easier than ever, writes Akansha Khullar.
Cheena Kapoor writes that deepening Covid-19 distress has left Indian women malnourished. With job losses and increased costs, women have been prioritising the food security of their families, often at the cost of their own health.
While India has often been divided by income, geography and education, it is now united by digital services. It has provided a template for the world on how to enable access, innovation and public goods over the internet, and Jaspreet Bindra hopes that a new telecom law reflects it.
India has the most under-performing white-ball cricket team in history, says Michael Vaughan.
Finshots Daily talks about lab-grown diamonds and India’s place in the burgeoning industry.
With Sushant Singh, former foreign secretary Vijay Gokhale discusses his new book After Tiananmen : The Rise of China.
Over and Out
The Kerala government will implement the second phase of the ‘Drug Free Kerala’ campaign from November 14 to January 26 with a football theme, in view of the upcoming World Cup.
Hindutva activists and BJP leaders on social media are demanding a ban on Drishti IAS coaching centre because one of its teachers is seen on video narrating an incident where Ram speaks unflatteringly about the chastity of Sita. The accusation is that Drishti has insulted Hinduism. Never mind the incident in question is straight out of Vyasa’s 18 volume Mahabharata, as translated by Purushottama Lal.
That’s it for today. We’ll be back with you on Monday, on a device near you. If The India Cable was forwarded to you by a friend (perhaps a common friend!) book your own copy by SUBSCRIBING HERE.