COURT’S LOCKDOWN: A JUDICIAL OVERREACH? - The Daily Guardian
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Policy & Politics

COURT’S LOCKDOWN: A JUDICIAL OVERREACH?

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The Allahabad High Court, on April 19, on a suo moto PIL regarding the surging COVID-19 crisis in the State of Uttar Pradesh gave elaborate directions to the State government to enforce a lockdown in five cities of the state, namely Lucknow, Prayagraj, Kanpur, Varanasi and Gorakhpur forthwith from 19th April – 26th April. The court had directed the State govt. vide its order dated 13th April to state the steps it was planning to take to tackle the ongoing situation, the response to which was found inadequate by the court in the affidavit filed by the govt. This occasioned the court to pass these directions. The court, while passing the directions observed: “Public health is the top most priority and call of the moment and any complacency of any degree today will cause havoc to people. We can’t shirk away from our constitutional duty to save innocent people from the pandemic which is spreading due to the negligence of a few” While it is considered to be an ideal and heroic step taken by the judiciary to protect the people from the pandemic, the directions may not stand the test of judicial scrutiny when viewed in purely legal sense on the touchstone of established jurisprudence on this issue.

It is a well-established principle of law that the judiciary cannot take policy decisions or assume unto itself the task of law-making as they fall within the exclusive domains of the executive and the legislature respectively and any such step would amount to judicial overreach or judicial overstepping. This has also been acknowledged by the Allahabad High Court in its order wherein it states “We know that putting a lockdown to public activities is a matter purely in the nature of policy decisions by the concerned government”. The reason for this impermissibility is the doctrine of separation of powers which although not strictly engrafted in our Constitution, is a part of its basic structure as has been held by the Supreme Court in Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461. The doctrine enunciates that the three organs of the government have to function in their exclusive spheres without encroaching upon the functions of others, unless permitted by the Constitution. Our Constitution has entrusted the functions of policy making, even in the most emergent situations on the executive wing headed by the President of India for the Union and the Governor for the States and the judiciary has the power to test the validity of these decisions taken by the executive. For instance, in the event of an armed rebellion or the constitutional failure of the machinery of the State, it is only the respective executives of the Union or the State which have the power to impose an emergency and the constitutional courts can merely test the validity of these actions to see if there was enough material available with the executive to base its decision (SR Bommai v. Union of India, AIR 1994 SC 1918). The analogy can also be extended to the ordinance making power of the executive to deal with the immediate situations when the legislature is not in session. Even the Epidemic Diseases Act, 1897 under which the governments have been framing the regulations and promulgating orders to deal with the COVID-19 pandemic provides for power of central or state government to take such actions.

The Supreme Court had specifically dealt with this issue in the case of Asif Hameed v. State of J&K AIR 1989 SC 1899 wherein it held that “The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.” Thus, it is clear that the only power that the judiciary reserves with itself in such matters is to consider the validity and propriety of such actions, namely the power of judicial review.

The reason for such a restriction on the judicial power was explained by the Supreme Court in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 while quoting the following monograph from the book Judicial Activism and Constitutional Democracy in India: “It is plain that the judiciary is the least competent to function as a legislative or the administrative agency. For one thing courts lack the facilities to gather detailed data or to make probing enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate information. On the other hand if courts have to rely on their own knowledge or research it is bound to be selective and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their orders, schemes and mandates. Moreover, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse their orders if they are found unworkable or requiring modification.” Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises “the Supreme Court would have well left the decision-making to the other branches of government after directing their attention to the problems rather than itself entering the remedial field.” Thus, it is clear from these decisions that the maximum power which the court holds in such matters is to direct the attention of the executive to such problems and to take steps for their redressal instead of itself becoming the policy framer for the reasons stated above.

There is yet another reason why such an action on the part of the Allahabad High Court is problematic. Imposition of lockdown anywhere makes a case for violation of fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution and can be sustained only on it being a reasonable restriction imposed via due procedure established by law. Such a law, as per Article 13(3) has to be either an administrative action (within the realms of its delegated powers) or a primary legislation enacted by the legislature. It does not include the judgements rendered by the Courts. It is well-established that the judiciary is not State within the meaning of Article 12 of the Constitution (Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388) and thus, determinations by the judiciary cannot be challenged for violation of Fundamental Rights under the Constitution.

Hence, it is clear that the directions given by the Allahabad High Court do not have a legal backing and are against the established canons of Constitutional principles. The Supreme Court has stayed the operation of the directions on a plea filed by the State of Uttar Pradesh challenging the validity of the directions and a final decision is awaited.

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Policy & Politics

Human cloning: If it becomes possible someday, then will it be a violation of human rights?

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“Our lives depend on recognizing that human cloning

like all forms of playing God is a moral life promoting endeavor” — (Alex Epstein)

The scientific and the technological advancements through which we all have undergone has made our lives both shocking and fascinating. Its emergence has created various new reproductive technologies. One of the creations is Human Cloning, which is slightly a new term. Our article certainly aims to find out that if Human Cloning is possible then whether it will infringe basic rights, in layman’s language we call them Human Rights. Before going depth in the discussion, let’s first talk about the meaning of the term “Human Cloning.”

WHAT IS HUMAN CLONING?

Britannica Encyclopedia defines the word “Cloning” as “the process of generating a genetically identical copy of a cell or an organism.”

If this cloning is used for the purpose of creating a human it is termed as Human Cloning. J.B.S. Haldane was the first to introduce the idea of human cloning.

Human Cloning is the biological term which is used to produce a genetically identical copy known as clone of an existing, or previously existing, human being or growing cloned tissue from that individual. Sometimes “Human Cloning” also called “Artificial Human Cloning”

WILL HUMAN CLONING VIOLATE HUMAN RIGHTS?

Human cloning is one of the means of reproductive and the most plausible moral right or human right which is at stake is reproductive freedom or procreative liberty. Reproductive freedom not only includes the right to choose not to reproduce by the means of contraception or abortion, but also includes the right to reproduce. The right to reproduce further includes the right to choose the various artificial reproductive methods and the techniques by which one’s want to produce, such as in- vitro fertilization, artificial insemination, gamete intra fallopian transfer etc. Human cloning is a new means of reproduction; indeed, its critics see it as more a means of manufacturing humans rather than seeing as a means of reproduction. Human cloning is a different means of reproduction than sexual reproduction but ultimately it is a means that can serve individuals interest in reproducing.

Sometimes human cloning could be the only means for individuals to procreate but in other cases different means of procreating would also be possible. When individuals have alternative means of procreating, human cloning could be chosen because it replicates a particular individual’s genome. The right to reproductive freedom cover at least some choice about the kind of children one will have, for example, genetic testing if an embryo or fetus for genetic disease or abnormality and so forth. The more a reproductive choice is not simply means the determination of oneself and one’s own life but the determination of the nature of another, for example as in the case of human cloning, the moral weight the interests of that other person, that is, the cloned child, should have decisions that determine its nature, but not unlimited, there may be discretion in shaping their child for example, through education and other child rearing decisions. Even if not the part of reproductive freedom then also, the right to raise one’s children as one sees fit, within in limit and mostly determined by the interests of the children. This right includes not just preventing certain diseases that harm to children but also selecting and shaping desirable features and traits in one’s children. There are many ways and the human cloning is the one way to exercise this right. Therefore there is good reason to accept that a right to reproductive freedom includes both a right to select the means of reproduction as well as a right to determine what kind of children to have, by use of human cloning.

Another different moral right which might be at stake while talking about human cloning is the right to freedom of scientific inquiry and research in the acquisition of knowledge. Leaving aside the ethical concern for a moment, here it should be noted that since human cloning is a new phenomenon emerging out, research on human cloning might provide valuable scientific medical knowledge beyond simply knowledge which can be very useful in order to understand how to carry out human cloning. Now coming to the ethical and moral aspect, I think prohibiting and stopping scientific research and inquiry is a serious matter and it will violate the right to free expression.

Another question arises that is there a moral or human right to a unique identity, and if so then whether it would violated by human cloning? For human cloning to violate a right of unique identity, the relevant sense of identity would have to be genetic identity that is a right to a unique unrepeated genome. This would be violated by human cloning, but is there any such right? It might be thought that there could not be such a right, because it would be violated in all cases of identical twins, yet no one claims that the human rights are violated. Even if there is such a right, then also sharing a genome with another individual as a result of human cloning would not violate it. Because, the idea of the uniqueness of each person historically predates the development of modern genetics and the knowledge that expect in the case of homozygous twins, each individual has a unique genome.

CONCLUSION

Human cloning has received little attention and seriousness nowadays because it’s moral and ethical aspect is in question. Although considering the above mentioned facts, In my opinion it is reasonable to say to that human cloning at this time may give great benefits and help to meet great human needs. There are many benefits of human cloning, for instance, it would enable couples in which one party risks transmitting a serious hereditary disease to an offspring, enable individuals to clone someone who had special meaning to them, such as child who had died, enable to get the duplication of individuals of great talent and so forth. No doubt like every other thing, it also have many cons. Government should make the laws so that no one can use this technique in a wrong way or for the wrong purpose. Therefore, I conclude on the basis of number of above mentioned reasons that human cloning would not violate the human rights. Like every other technology and techniques it should be used wisely in order to avail the benefits otherwise it will destroy.

“We have no reason to think that human cloning will not work- it works in primates- but it may take many, many attempts.”— (Wolf Reik)

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Policy & Politics

PIYUSH GOYAL ADDRESSES CLOSING SESSION OF INDIA-EU BUSINESS ROUNDTABLE

Goyal says that India and the EU are committed to work towards a balanced, ambitious, comprehensive and mutually beneficial trade agreement and an investment protection agreement parallelly; India provides a multitude of investment and manufacturing opportunities.

Tarun Nangia

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Piyush Goyal

Minister of Railways, Commerce & Industry, Consumer Affairs and Food & Public Distribution, Piyush Goyal today addressed the CII: EU-India Business Roundtable Closing Session. This closing session of India-EU Business Roundtable coincided with the 16th India-EU Summit. During the meeting, the leaders expressed their desire to further strengthen the India-EU Strategic Partnership based on a shared commitment to democracy, fundamental freedoms, rule of law and multilateralism. They exchanged views on three key thematic areas: i) foreign policy and security; ii) COVID-19, climate and environment; and iii) trade, connectivity and technology. They discussed forging closer cooperation on combating the COVID-19 pandemic and economic recovery, tackling climate change, and reforming multilateral institutions. India appreciated the prompt assistance provided by the EU and its member states to combat its second COVID wave.

Goyal, in his address, expressed happiness at the landmark announcement made by leaders of India and EU today on the resumptions of negotiations for bilateral Free Trade and Investment Agreements. He said that India and the European Union are committed to work towards a balanced, ambitious, comprehensive and mutually beneficial trade agreement and a separate investment protection agreement on a parallel track, and together we shall strive for early conclusion of both the agreements simultaneously. “Both these agreements are going to lift our economic relationship to another level with enhanced bilateral flow of trade, investments, job creation, technology transfers and innovations. These will be separate agreements and negotiated in a parallel track. We are also committed to concluding them together at an early date.”

Goyal said that India received its highest ever Foreign Direct Investment in its history, despite COVID-19, even while investments worldwide fell down. Dwelling upon the reasons, he said that investments are protected in India. “We have a very strong judiciary and respect for rule of law, transparency in all decision making, political stability, IPR protection. There is no compulsion for any company to do technology transfer in India. We are actively working towards improvement in our ease of doing business rankings, in our competitiveness, de-bureaucratising systems and making procedures simpler, opening up newer sectors for more FDI, strengthening regulatory practices.”

The Minister said that as the world moves to realign from the over-concentrated and risky supply chain, he would like to reassure all business friends that they can trust India to provide a multitude of Investment and manufacturing opportunities. He said that our manpower skills and talent have contributed to businesses around the world. “Therefore, India can become a natural manufacturing base to make the products from European innovation, competitive in the world. With the large Indian market of more than 1 billion people aspiring for a better quality of life and using economies of scale to expand the footprint of European goods in the world, this is a win-win partnership.”

On the concept of Aatmanirbhar Bharat, Goyal said that it does not mean being protectionist and closing our doors to the world. On the contrary, India wishes to open its doors wider and warmly welcomes businesses from across the world to bring world class technologies to India, state-of-the-art products and services into India & investments in manufacturing, services & infrastructure, he added. He expressed the hope that our track record should give confidence to European friends that India will be their natural & most reliable ally in the years to come. Shri Goyal said that European businesses are well known for their innovative work and scientific discovery. He said that with cost of production in Europe being high and manufacturing cost in India being reasonable, European businesses can get competitive edge by producing in India.

The Minister said that we are currently ramping up our vaccine production so that we can expand our vaccination coverage speedily. He said that the support extended by the EU during this crisis is highly appreciated.

Goyal invited the business community of EU and India to use this opportunity and actively take part in the joint efforts to bolster and develop our trade ties, economic ties, people to people ties and cultural relationships.

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Policy & Politics

The Unique Indian Market: Doing Business in India

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The complex and challenging diversity of India has confused many – Indians as well as foreigners have tried and are still trying to understand the market for taking right decisions. But often they have failed. Some learnt their lessons and survived whereas others quit. But no one could sum up common problems or common prospects with sure shot definition of the Indian market and its attributes like most global peers (by definition of a country). Now, here is a book which has tied all aspects about the country together in one thread and very brilliantly put them in mere 200 odd pages. This quick read summarizes the History, Geography, Democratic Politics and Economics of modern Free India along with undivided India/ colonial India(before independence), without compromising on data and the key facts.

The initial chapters in the book focus on an overall status of Indian market – a brief history, success, and failures of foreign companies in India. This is followed by describing the diversity across all possible parameters viz. ethnic, linguistic, regional, religious, cultural, food habits, lifestyle etc. The next few chapters brilliantly summarize the history of foreign attacks and rulers from Gupta Dynasty in 4th Century to the British rule till 1947 (middle of 20th Century) along with foreign business in India since 1292AD. All the East India Companies of different countries for different goods in different Indian territories, debate on acknowledgement of “India” and failure of an American East India Company (yet a successful ice-export to America by ship in 1883) is covered here.

Stating credible and authentic sources, the author boasts of the 35% contribution made by India to the world GDP before the foreign attacks and compares it to the ‘less than 1%’ a decade before the start of the 21st Century. The book compares the golden history with current concerns and struggles for the SMEs in the country providing valid reasons for the change over centuries and suggestions for making a mark again. It talks about how the country directly jumped from being an agrarian economy to the service one, grossly skipping the important manufacturing lessons. The seeds sown by the invaders that made India a supplier of raw materials and importer of finished goods, are still reaping their bitter fruits which has made Indians totally dependent on other countries or their MNCs/companies in India for the manufacturing part. Every eye is now on the results of ‘Make-In-India’ and ‘Atma-Nirbhar-Bharat’. How India makes up for the losses it faced for centuries and gets back its prosperity, which it lost to the greed of others, and self-created mistakes!

The next few chapters provide the reader an exhaustive overview of governance and administration system in India with around 1000 political parties at country level, and the love-hate relationship between the union and state governments, and its implications on businesses. Following these are topics on classification of the country based on wealth inequality, religion, reservations, working, education, native status, region, languages, surnames etc.

An exceptional set of chapters on Social Capital of India and Indian Education System follow next. The author highlights how successful SME with international trade existed even in ancient history. Pluralism based rich heritage was present without existence of slaves or concept of castes. Qualities and actions were given more importance in ancient India, not the family of birth – all these were changed by the British for their selfish motives and ‘divide and rule’ policies; castes were assigned at birth and first caste-based census was reported in 1987. Castes were brought by the Portuguese and the British. Jati

Book Review

(based on knowledge) or Varna (community) is not same as Caste. Caste and Reservations based systems were the main cause for lack of development , disharmony, and social problems like untouchability. The Indian Education System today faces issue of ample knowledge but lacks in skills and trainings, because it has shifted from the Gurukul system and well-developed universities to current faulty Pro-Degree one. This was surely another downgrade by foreign invaders who wanted India to remain a raw-material exporter. Practice based education system was converted to theory based, same education system for all, high tenure in education system of 10+2+3/4 years. The upcoming New Education Policy gets a ray of hope to cater to these drawbacks and revive the ancient Indian entrepreneurial system with new nomenclature.

India’s orientation towards service sector and the problems of agriculture and industries is covered in detail in the following chapters. How ‘thriving SMEs were uprooted and License-Quota-Permit-Raj was imposed’ is discussed. Even after 75 years of independence and multiple changes in industrial policy, manufacturing industry is still not even close to the ancient SMEs. Due to the strong Government control, even now around 2,000 different approvals and permissions are required to start and run a manufacturing business, which need to regularly undergo lot of inspections and regulations.

Business culture, business systems and impact of family system on business is well defined and exhaustively discussed by Dr. Jain. India vs. Bharat debate and India’s Diaspora with Indians who have settled abroad are a decent read. The author does not forget to cover the regular and massive festivals and celebrations and their role in business.Interestingly chapters that follow next highlight on media –(advertising and PR), Jugaad Technology, existence of parallel systems and paradoxes seen in the country which create a base for how things are not as they appear.

The last few chapters talk in detail about India being in transition, the taxation & legal system in India and strategies and tips for a successful India entry. Throughout the book, the author continues to assess the performance and what lacks in the SMEs ,he provides apt suggestions to cater to the later.

A well-researched, well-structured, and well-expressed book of 30 chapters, “The Unique Indian Market: Doing Business in India” is a masterpiece for existing and prospective entrepreneurs and for everyone who intends to understand the country (in fact, the Sub-continent – considering the diversity as the author Dr. Prateek Jain puts it). Dr. Jain has used a varied range of writing flavors – seriousness of facts, jokes with good sense of humor, using anecdotes or simple essaying – keeping the essence intact and effective. Each chapter is complete in itself, yet well connected with the other.

In a nutshell, after the detailed and fact-based analysis, the author convinces the reader how 2020s is the best time to do business in India. Success is guaranteed if the uniqueness of the market is accepted and appreciated, and case specific related action taken. Though targeted with a business in India focus, this book is a must-read book for a traveler, a student or a homemaker!

Hemant G. Golechha is PhD Research Scholar, Dr. Vishwanath Karad’s MIT World Peace University.

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Policy & Politics

INDIA’S MERCHANDISE EXPORT IN APRIL 2021 WAS US$30.21 BILLION

Tarun Nangia

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India’s merchandise exports in April 2021 was USD 30.21 billion, an increase of 197.03% over USD 10.17 billion in April 2020 and an increase of 16.03% over USD 26.04 billion in April 2019.

India’s merchandise imports in April 2021 was USD 45.45 billion, with an increase of 165.99% over USD 17.09 billion in April 2020 and an increase of 7.22% over USD 42.39 billion in April 2019.

India is thus a net importer in April 2021 with a trade deficit of USD 15.24 billion, which increased by 120.34% over trade deficit of USD 6.92 billion in April 2020 and declined by 6.81% over trade deficit of USD 16.35 billion in April 2019.

In April 2021, the value of non-petroleum exports was USD 26.85 billion, registering a positive growth of 200.62% over USD 8.93 billion in April 2020 and a positive growth of 19.44% over USD 22.48 billion in April 2019. The value of non-petroleum and non-gems and jewellery exports in April 2021 was USD 23.51 billion, registering a positive growth of 164.28% over USD 8.90 billion in April 2020 and a positive growth of 19.89% over USD 19.61 billion in April 2019.

In April 2021, Oil imports was USD 10.8 billion, a positive growth of 132.26% compared to USD 4.65 billion in April 2020 and a negative growth of 6.62 compared to USD 11.56 billion in April 2019.

Non-oil imports in April 2021 was estimated at USD 34.65 billion, showing an increase of 178.6% compared to USD 12.44 billion in April 2020 and an increase of 12.42% compared to USD 30.82 billion in April 2019.

Non-oil, non-GJ (gold, silver &Precious metals) imports was USD 26.05 billion in April 2021, recording a positive growth of 111.3%, as compared to non-oil and non-GJ imports of USD 12.33 billion in April 2020 and a positive growth of 6.48% over USD 24.46 billion in April 2019.

All Major commodities have recorded positive growth in export during April 2021 vis-à-vis April 2020 namely, Gems and Jewellery (9158.63%), Jute mfg. Including floor covering (1556.39%), Carpet (1351.48%), Handicrafts excl. Hand-made carpet (1207.98%), Leather and leather manufactures (1168.96%), RMG of All Textiles (920.52%), Cotton yarn/fabrics/made-ups, handloom products etc. (616.6%), Man-made yarn/fabrics/made-ups etc. (583.53%), Ceramic products and glassware (441.57%), Other cereals (441.46%), Electronic Goods (362.86%), Oil meals (275.91%), Cashew (252.46%), Mica, coal and other ores, minerals including process (234.63%), Engineering goods (234.63%), Tobacco (183.86%), Iron ore (175.15%), Petroleum products (171.11%), Cereal preparations and miscellaneous processed item (170.86%), Oil Seeds (166.24%), Meat, dairy and poultry products (148.6%), Tea (143.04%), Marine products (107.59%), Spices (102.32%), Coffee (73.83%), Organic and Inorganic Chemicals (69.39%), Rice (60.29%), Plastic and linoleum (47.49%), Fruits and vegetables (21.82%), and Drugs and pharmaceuticals (20.68%).

Major commodity groups of export showing positive growth in April 2021 over April 2019 are: Iron ore (219.55%), Other cereals (206.43%), Oil meals (86.59%), Jute mfg. Including floor covering (66.19%), Rice (49.45%), Cereal preparations and miscellaneous processed item (40.34%), Electronic Goods (35.81%), Mica, coal and other ores, minerals including process (33.17%), Spices (32.72%), Cotton yarn/fabrics/made-ups, handloom products etc. (25.27%), Ceramic products and glassware (22.57%), Drugs and pharmaceuticals (22.55%), Carpet (22.38%), Engineering goods (18.61%), Cashew (16.57%), Gems and Jewellery (16.38%), Marine products (16.34%), Handicrafts excl. Hand-made carpet (14.33%), Plastic and linoleum (13.31%), Fruits and vegetables (11.66%), Man-made yarn/fabrics/made-ups etc. (8.35%), and Oil Seeds (1.30%).

Major commodity groups of export showing negative growth in April 2021 over April 2019 are: Tea (-23.66%%), Leather and leather manufactures (-13.27%), Tobacco (-9.86%), RMG of All Textiles (-8.01%), Petroleum products (-5.5%), Coffee (-2.56%), Organic and Inorganic Chemicals (-2.21%), and Meat, dairy and poultry products (-1.38%).

Major commodity groups of import showing positive growth in April 2021 over the corresponding month of last year are: Gold (215906.91%), Pearls, precious & Semi-precious stones (119500.48%), Sulphur & Unroasted Iron Pyrites (1525.05%), Electronic goods (213.59%), Non-ferrous metals (193.89%), Transport equipment (170.95%), Professional instrument, Optical goods, etc. (163.13%), Artificial resins, plastic materials, etc. (138.18%), Metaliferrous ores & other minerals (133.77%), Petroleum, Crude & products (132.26%), Machinery, electrical & non-electrical (113.73%), Textile yarn Fabric, made-up articles (111.7%), Wood & Wood products (101.01%), Machine tools (100.93%), Vegetable Oil (97.57%), Project Goods (91.79%), Leather & leather products (91.59%), Dyeing/tanning/colouring materials (88.10%), Chemical material & products (84.57%), Iron & Steel (73.19%), Organic & Inorganic Chemicals (72.73%), Fruits & vegetables (70.0%), Coal, Coke & Briquettes, etc. (65.98%), Medcnl. & Pharmaceutical products (56.92%), Pulp and Waste paper (46.35%), Cotton Raw & Waste (11.68%) and Fertilisers, Crude & manufactured (7.75%).

Major commodity groups of import showing negative growth in April 2021 over the corresponding month of last year are: Silver (-88.55%), Newsprint (-46.07%), and Pulses (-42.46%).

Major commodity groups of import showing positive growth in April 2021 over April 2019 are: Vegetable Oil (75.85%), Gold (54.17%), Chemical material & products (41.68%), Artificial resins, plastic materials, etc. (36.69%), Metaliferrous ores & other minerals (29.60%), Sulphur & Unroasted Iron Pyrites (25.23%), Medcnl. & Pharmaceutical products (22.23%), Fruits & vegetables (18.95%), Electronic goods (17.01%), Pearls, precious & Semi-precious stones (15.39%), Non-ferrous metals (13.51%), Organic & Inorganic Chemicals (12.46%), Professional instrument, Optical goods, etc. (6.78%), Dyeing/tanning/colouring materials (5.54%), and Wood & Wood products (2.63%).

Major commodity groups of import showing negative growth in April 2021 over April 2019 are: Silver (-95.25%), Newsprint (-59.63%), Cotton Raw & Waste (-50.42%), Pulses (-46.98%), Project Goods (-37.47%), Leather & leather products (-33.10%), Transport equipment (-24.49%), Machine tools (-23.40%), Pulp and Waste paper (-18.09%), Iron & Steel (-17.93%), Coal, Coke & Briquettes, etc. (-14.84%), Fertilisers, Crude & manufactured (-11.44%), Petroleum, Crude & products (-6.62%), Machinery, electrical & non-electrical (-1.55%), and Textile yarn Fabric, made-up articles (-0.37%).

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Policy & Politics

Badrinath to be developed as spiritual and smart hill town by oil and gas PSUs

Chief Minister of Uttarakhand and Minister for Petroleum and Natural Gas & Steel jointly witness the signing.

Tarun Nangia

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Memoranda of Understanding (MOUs) were signed today between the Oil and Gas PSUs-IndianOil, BPCL, HPCL, ONGC and GAIL, and Shri BadrinathUtthan Charitable Trust for Construction and Redevelopment of Badrinath Dham as a Spiritual Smart hill Town. The MoUs were signed in the august presence of the Chief Minister of Uttarakhand Tirath Singh Rawat, Union Minister of Petroleum and Natural Gas & Steel Dharmendra Pradhan, Tourism Minister of Uttarakhand Satpal Maharaj, Secretary, MoPNG Tarun Kapoor, Chief Secretary of Uttarakhand Shri Om Prakash, and senior officers of the MoPNG, Uttarakhand Government and Oil & Gas PSUs.

As per the MoUs, the Oil & Gas PSUs will be contributing Rs. 99.60 crore in the first phase of the developmental activities, including river embankment work, building all-terrain vehicular path, building bridges, beautifying existing bridges, establishing gurukul facilities with accommodation, creating toilet and drinking water facilities, installing streetlights, mural paintings etc.

Speaking on the occasion, Pradhan said that Char Dham is close to millions of Indians, due to spiritual, religious and cultural reasons. The Oil and Gas PSUs will not only contribute to the development work of the Badrinath but are also part of the development of Kedarnath, Uttarkashi, Yamunotri and Gangotri. He said “Today’s event is a significant milestone in the direction of Prime Minister Narendra Modi’s vision of developing Badrinath shrine as a mini smart and spiritual city, without compromising on the religious sanctity and mythological importance of the region.”

Lauding the efforts of Oil & Gas PSUs in developing the facilities, Pradhan said, “I am glad that Oil and Gas PSUs of this nation have come forward to realise the vision of developing BadrinathDham into a Smart Spiritual Town. Tourism is one of the key industries, which is playing a critical role in the development of the state. Development of the sites like Badrinath would also help in attracting more tourists, which in turn would strengthen the economy of the state.”

Addressing the occasion, Tirath Singh Rawat said, “I congratulate Union Minister Dharmendra Pradhan and Oil & Gas PSUs for extending their supports for this noble initiative. Shri Badrinath Dham has a special place in the hearts of the people of this country. It is considered to be one of the most sacred places in our country, and developmental activities are much needed to provide the best of facilities to the pilgrims from across the country. With the concerted efforts of both Uttarakhand Govt. and Oil & Gas PSUs, we are hopeful that the rejuvenation work of Shri Badrinath Dham will be completed within a span of three-year time.”

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Policy & Politics

SIGNIFICANT ECONOMIC PRESENCE: ADDING ANOTHER STRING TO THE BOW

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Over the years, digitalisation and technology have revolutionised our world and daily lives. Emerging technologies such as internet of things, quantum computing, augmented reality, artificial intelligence, big data, machine learning, blockchain etc have a marked influence on our economic as well as social activities and are changing the way people connect, entertain, socialise, create, sell, shop and work. With technological advancement, the pace at which businesses have proliferated their extraterritorial presence without having any tangible footprint, is astonishing. India is among the top three global economies in terms of digital consumer base, with 624 million active internet users. Taxation systems in major developing economies, including India, were drafted taking into consideration, the traditional way of doing business, ie a brick-and-mortar model. The conventional residence-based and source-based concepts of taxation have become outmoded over time and incapable of effectively taxing the digital economy largely due to its distinctive amorphous nature. This has resulted in either double taxation or non-taxation of revenues and has become a key base erosion and profit shifting concern across the globe. The OECD and G-20 countries have been working determinedly under the inclusive framework on BEPS to address the need for tax reforms. The OECD is spearheading a project to develop a consensus-based solution to address this crisis through revised profit allocation and nexus rules. India has been at the fore of adopting changes in international tax systems to keep pace with progression in the digital world. India was among the first to implement Equalisation Levy in 2016 on online advertisements related services and to substantially expanded the scope of this levy in 2020 to cover e-commerce supply and services. Equalisation Levy is designed to operate outside the framework of the existing system of tax treaties and transactions covered thereunder are not subject to income tax.

In the year 2018, the domestic tax laws in India were amended to widen the scope of ‘business connection’ with the introduction of Significant Economic Presence (SEP). The resulting income of a non-resident attributable to SEP in India were to be considered taxable. However, owing to delay in accomplishing a global consensus, SEP provisions were deferred till April 1, 2021 and the enacting thresholds were not prescribed. Pursuant to the amendments in Finance Act 2020 and the recent notification prescribing these thresholds, SEP is now defined to mean any transaction in respect of any goods, services or property carried out by a non-resident with any person in India, including the provision of download of data or software in India, subject to payments threshold of INR 20 million or systematic and continuous soliciting of business activities or engaging in interaction with 0.3 million or more number of users in India. Moreover, transactions and activities may constitute SEP in India, regardless of whether a non-resident has a residence or place of business in India, or renders services in India, or agreement for such transactions or activities is entered in India. This all-embracing definition is not restricted to digital transactions and could also impact typical buy-sell or service transactions between non-resident and an Indian resident. Far from the original intent, SEP provisions may also embrace offshore sale of goods and provisions of services outside India, unless clarified otherwise. Necessary clarifications regarding definition of key terms such as goods, property, systematic and continuous soliciting etc are awaited too from the Regulators.

Although SEP related provisions are applicable from April 1, 2021, it may only be a ‘paper tiger’ as non-residents from tax treaty network countries are shielded under the narrower definition of Permanent Establishment (PE) in respective tax treaties. India has an operational tax treaty alliance with majority of countries housing businesses that derive income from India. Unless these tax treaties are renegotiated through bilateral or multilateral instrument and corresponding modifications are made to include provisions similar to SEP in those tax treaties, SEP provisions under domestic tax laws seem innocuous. Irrespective of this armour, test of beneficial ownership could still be a relevant aspect to evaluate, especially in cases of multi-tier structures, where a non-resident could invoke tax treaty protection to duck SEP test. On other side of the fence, SEP provisions would set in motion for all businesses coming from countries such as the Bahamas, Bermuda, Cayman Islands, etc, with whom India does not have a tax treaty yet.

A conjoint assessment of net basis taxation under SEP and gross basis taxation under Equalisation Levy would become critical for digital businesses. Equalisation Levy would become an elective regime once a non-resident e-commerce operator accedes to an Indian PE, in the form of SEP. In a scenario where a non-resident constitutes SEP in India, only income attributable to such transaction or activities would be taxable in India. While a public consultation document on profit attribution for SEP was issued by the Central Board of Direct Taxes, no rules have been notified so far. It, therefore, becomes apposite to assess the applicability of Rule 10 in such a scenario. Constitution of SEP would unfold various compliance obligations for both, payers and non-residents. Payers would be required to review withholding tax position as any shortfall could trigger expense disallowance, interest, and penal consequences. Non-residents, on the other hand, could be required to file income tax return, tax audit and transfer pricing reports in India, wherever applicable. Notably, non-compliance related to transactions carried out between April 1 and May 2 of 2021 (ie before threshold notification date) may possibly be defended by payers on the tenet of impossibility of performance.

Though the payment threshold for Equalisation Levy and SEP are calibrated at same level, it is quite low given the size of Indian economy and growing consumer base. Even after the Apex Court settled the highly debated issue of taxation of software, taxpayers cannot breathe a sigh of relief as the ruling was based entirely on the premise of no PE in India and software sale as well as services transactions could now well be covered under the new SEP regime. The evolving ecosystem of taxation in India would require non-residents to tread a tightrope as dynamic provisions such as SEP are plugging-in loopholes that may have existed under domestic tax laws for a while. What lies ahead is the hope of reaching a quick global consensus that could provide a fair and just system of taxation, followed by modification of tax treaties to incorporate the suggested amendments.

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