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Policy & Politics

DEMOCRACIES OF THE WORLD NEED TO STAND TALL AGAINST CHINA

Before the Dragon wreaks havoc again with its aggressive revisionist agenda, democratic powers must unite and show it the strength of responsible and liberal governments.

Jamal Nasir Baloch

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China, under the leadership of Xi Jinping, is rapidly transforming from an authoritarian state to a totalitarian fascism. In the last one year, China has brought the entire world extreme pain and anguish—the world has not undergone so much distress since World War II—all because of the Wuhan-originated virus, which had been kept under wraps till the time it rooted itself in every corner of the world. Since its inception, communist China’s first victims were its own people and people from occupied territories. Turkestan, also known as Xinjiang, was occupied by Mao’s communist army in 1949. Subsequently, Tibet was occupied, and the 14th Dalai Lama, along with his followers, was forced to take refuge in India.

Although China is composed of multi-ethnic people, it is controlled by the hegemonic power of ethnic Mandarin-speaking Han Chinese, who also constitute 90 percent of China’s population. The Chinese state is a cocktail of fascism, extreme nationalism, communism, and capitalism. China’s state policies toward ethnic minorities and occupied nations, like Buddhism in Tibet, Islam in East Turkestan and Mongols in southern occupied Mongolia, are extremely racist and broadly resembles Nazi Germany. The Nazis had implemented the policy of Lebensraum, where conquered nations faced extermination, race annihilation, mass murder, ethnic cleansing, and relocation because Berlin believed that they could utilise the living space for ethnic Germans. China’s policy in occupied territories such as Xinjiang, Tibet, Inner Mongolia and covertly economically ruled Gilgit Baltistan, KPK, and a vast span of Balochistan has led to slow-motion genocide and internal displacement of ethnic populations.

Unlike most authoritarian states, China does not believe in the continuity of the established world order. China is a disruptive and revisionist power. When it comes to international obligations and laws, China has already started to disregard it. In the apparent violation of International Sea Laws, China is building airstrips, radars, and missile systems in the international waters, causing hurdles for the freedom of navigation in the Pacific Ocean, and is also engulfed in border and land disputes with countries like Taiwan, Myanmar, Nepal, Bhutan, India, and a few more. In the 1990s, Western policymakers hoped that investment and trade with China would bring more freedom for the Chinese people. Nevertheless, they were wrong; China’s economic strength translated into more internal repression and external aggression.

Although China was a victim of colonisation it is now China which is becoming a coloniser in the region. China’s geopolitical and military ambitions are not limited to East Asia and South-eastern Asia. The Belt and Road Initiative (BRI) has enabled China to reach as far as Europe. One of the significant parts of the BRI is the China Pakistan Economic Corridor (CPEC), a blueprint for military and economic colonisation of South Asia. Pakistan and China are collaborating to turn occupied Balochistan, KPK into a colony and trying to emulate it on the lines of Xingxiang. In Jiwani, near the Strait of Hormuz, Pakistan and China are constructing a naval base and a secret underground naval base in strategic Sonmiani Beach.

These secret bases in Balochistan will not only give China strategic hegemony in the Persian Gulf but also endanger free trade as they have done in the South China Sea.  It would adversely affect India, the world’s largest democracy and a regional powerhouse, complicating the strategic depth the Indian Navy has and would also give China and Pakistan some leverage to countervail India’s already occupied territories by China. Chinese claims over non-Chinese territories are based on myths and past imperial history. If, according to Chinese logic, imperial occupation is the basis of legitimacy to rule a populace then Mongolians should be the ruler of the Chinese people, because after all China was conquered and governed by the Mongol Empire for almost a century.

Since the spread of the global pandemic of Covid-19, the policies of Western countries which appeased China in the past have turned against China. The novel coronavirus has caused substantial human and financial losses in the entire world. Western countries are investing more in their defence and preparing for future conflicts now. In the midst of a second national lockdown and recession, the British government announced the largest increase in their defence budget since the Cold War. The goal of Britain seems very clear: they want the Royal Navy to be one of the most powerful naval forces of the world. However, the security challenges do not lie in continental Europe but in the waters of the Pacific Ocean.

However, the British government never cared about the people who have been subjugated since the establishment of the People’s Republic of China. During the state visit of Xi Jinping in 2015, The Guardian had reported that the British police raided Tibetan dissidents’ homes because they waved Tibetan flags and Chinese pro-democracy activists like Shao Jiang, who survived Tiananmen Square, were intimidated and arrested because of direct Chinese pressure. Britain’s appeasement policy started to gradually shift only when the Chinese communist party systematically destroyed Hong Kong’s democratic system. The United Kingdom is a party to the Sino-British treaty of 1984 which established the principle of “one country, two systems” in China, and it ensured that Hongkongers would enjoy a degree of political and economic freedom. Like Britain, most western democracies prefer financial incentives on democratic values and human rights. If it had not been for China’s violation of the Hong Kong treaty and militarisation of the South China Sea, Britain would have never changed its policy of appeasement.

Dominique Moisi, a French political scientist, who favours engagement with China, also pointed out that China is the new repressive and revisionist power. In a recent interview with the Japanese newspaper Nikkei, he said that “China has become more and more brazen, changing by force the status quo. It’s a brutal disruption of the existing world order”.

Since the outbreak of Covid-19, China has engaged in a propaganda campaign which portrays its undemocratic and authoritarian system as more efficient than democracies in containing the virus. China runs propaganda that its response and containment of the virus shows that it has an effective form of governance, whereas liberal democracies are an ineffective system of government which cannot deal with a crisis. Search the internet about China’s governance system vs the liberal democracy and we can find hundreds of articles in reputable Western newspapers and academic journals. Some argue for and others against the Chinese model.

The war, which is waged by China, is not limited to the economy and geopolitics. China, like the former Soviet Union and Nazi Germany, believes that liberal democracies with free economies are a threat to its very survival. According to a study by the International Republican Institute, a Washington-based think tank, China is undermining democratic institutions all over the world. The report states that “Beijing’s support for illiberal actors, the presentation of its model as a superior catalyst of industrial development, and its export of authoritarian tools and practices have the undeniable effect of eroding democratic norms in many countries”.

Despite Chinese propaganda against the democratic system of governance, history proves otherwise. The Nazis, like contemporary Chinese communists, argued that totalitarianism and fascism make for a better system of government. They waged war, killed millions of Jews and other innocent people. The Nazis were defeated and humiliated by the Allies. Nazi leaders were tried for crimes against humanity in Nuremberg. Hermann Goring, one of the most powerful men in the Nazi regime, was asked by Justice Jackson, whether he told a fellow officer that democracies could not fight, cannot mobilise? He retracted from the Nazi stance and said, “I did not tell him any such nonsense, for we had one democracy as our chief enemy, namely England, and how this democracy would fight we knew from the last World War, and we experienced it again during this war”. It seems that this time, once again, democracies will trounce fascism and the Communist Party’s repressive, hegemonistic, and imperialistic idea of the world. 

In fact, during the current pandemic, democracies in East Asia have been more effective and efficient in containing Covid-19 and saving countless lives. Taiwan, Singapore, India, and South Korea did better than China and Western democracies, whereas China’s totalitarian system not only caused problems for Chinese people but the entire world. In December 2019, when Chinese doctor and whistleblower Li Wenliang tried to warn the world about the deadly virus, he was intimidated and arrested by state authorities. The Chinese Communist regime accused Li Wenliang of making false claims, and later he died from the virus. Imagine, if China had been a liberal democracy, instead of being silenced, Wenliang would have been recognised as a hero. As a result of the freedom of speech, millions of lives and jobs all around the world would have been saved. The world would have been a safer place. We are facing this pandemic because of the repressive and dysfunctional nature of the totalitarian system, which is inadequate to serve humanity.

Ergo, it is about time for the world to unite against the fascist behaviour of China before it creates more chaos in the world. Democratic powers must take up the responsibility to stand tall and make the Chinese Communist Party pay for its folly and misinformation regarding the Wuhan-originated virus as well as the distress caused all over the world.

Therefore, before distracting ourselves from the Chinese-initiated debate about whether totalitarian regimes are better than open societies, we should have asked, what difference could Li Wenliang’s brave act have made if China had been a responsible state and a liberal democracy?

The writer is Free Balochistan Movement’s head of the Foreign Affairs Department and a member of Chatham House. The views expressed are personal. He can be reached at @JNBaloch.

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Policy & Politics

Significance of attaining the age of majority: Decoding the landmark judgements in the light of Article 21

The 242nd Law Commission Report titled ‘Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework’ demonstrates how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights, “As far as India is concerned, ‘honour killings’ are mostly reported from the states of Haryana, Punjab, Rajasthan and UP. Bhagalpur in Bihar is also one of the known places for ‘honour killings’.”

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If you are a major, you can even solemnize marriage with a criminal and no fetters can be placed on your choice; indeed, it may appear somewhat paradoxical to the ordinary mind but not to a legal mind. I am not pronouncing this verdict on unqualified grounds rather this phenomenon of the right to make a choice is the result of the peculiar stupendous judicial pronouncements. Recently, the right to choose a partner of one choice, the right to renounce one religion and accept another religion are such constructive, progressive, and liberal concepts that have garnered the substantive attention of large public discourse. But with the attention on the topic of choice of partner and religion, few people have paid attention to the subject matter of “Age of the Majority”.

According to Sec 3(1) of the Indian Majority Act 1875, an individual is said to attain the age of majority when he/she completes his/her 18 years. Article 21, does mandate that no person shall be deprived of his/her liberty but there is no such expression, expressly enumerated under this Article that we are having the liberty to marry a person, involved in criminal activities. Interestingly, it is worth mentioning that there are many rights guaranteed implicitly under Article 21 of the Indian Constitution as it is the mother in recognizing the “Unrecognised liberties”. It is desirable to note that one of such recognitions, was recognizing the significance of an individual who attains the age of majority.

The Hon’ble Supreme Court, while recently hearing the contention advanced by the petitioner in the case of Soni Gerry v. Gerry Douglas (2018) 2 SCC 197 that the daughter is under illegal custody/detention and the Court must free her from illegal restraint. The Hon’ble Court considered this particular fact that the daughter had completed 18 years of age on 19.9.2016, thus she had attained the age of majority. In this regard, the landmark observation that was made by the Court that – ‘when an individual attains the age of majority, it has its own significance. It was also observed that he/she is entitled to make his/her choice. The Hon’ble Supreme Court rejected the contention to pass the writ of habeas corpus and held that she was not under illegal detention.

AGE OF MAJORITY: A DETERMINATE FACTOR IN UPHOLDING THE TWO MAJOR RIGHTS

Recognising the two major rights- the right to marry a person of one’s choice and the right to renounce one religion and accept another religion are appositely valued and also its esteemed status is conferred under Article 21 of the Constitution of India.

Article 16 of the Universal Declaration of Human Rights also lays down the importance of age of majority that – “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

“India is a free and democratic country and once a person becomes a major he/she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relation with son or daughter,….”- This was the erudite observation made in the much-celebrated case of Lata Singh v. State of U.P and Another, (2006) 5 SCC 475 that reverberates in the Constitutional guarantee of freedom from the patriarchal tyranny and autocracy.

The notion of liberty was also examined and evaluated in the case of Gian Devi v. Superintendent, Nari Niketan, Delhi (1976) 3 SCC 234, that the girl has attained the age of majority and no restraints can be placed on her choices of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she could stay. Even the Court does not possess the right to determine.

The landmark case of Shafin Jahan v. K.M Ashokan & Ors. AIR 2018 SC 357 cannot be ignored as the same is an important development for the right to choose a partner of one’s choice. It is worth stepping into the facts of the case where a girl namely Hadiya aged 26 years converted herself to Islam and married a Muslim boy namely Shafin Jahan. In this case, the father Ashokan moved a habeas corpus petition before the Hon’ble Kerala High Court alleged that her girl Hadiya was the victim of systematic psychological manipulation and forcefully converted to Islam and in the furtherance of same, her daughter was likely to transport out of the country. The High Court accepted the contentions and allowed him to sustain the writ petition of habeas corpus and annulled the marriage of her with Shafin Jahan. The High Court of Kerala was in the view that even though she has attained the age of majority, she is weak and vulnerable and capable of being exploited in many ways in the circumstances noticed in this instant case. An investigation was also ordered to National Investigation Agency to investigate the ‘education, family background, antecedents and other relevant details of Shafin Jahan and it is fascinating to note that the principal finding of the report was that Shafin Jahan is accused in a criminal case and his Facebook posts show a radical inclination.

When this matter came before the Hon’ble Supreme Court, it was observed that Kerala High Court has failed to recognize the undisputed fact that the girl Hadiya is major, and when an individual attains the age of majority, he/she becomes capable to take her own decision. It was also observed that the annulment order passed by the Kerala High Court is the non-acceptance of her choice that simply transgresses her fundamental rights guaranteed under our Constitution. The Kerala High Court, being a Constitutional Court was not supposed to interfere in this matter as the very interference amounts to a miscarriage of justice and the liberty and dignity of two consenting adults who have been subjected to judicial affront. The Hon’ble Supreme Court also clarified that if there is any criminality in any sphere then NIA may continue its investigation however the validity shall not form the subject matter of the investigation and NIA cannot interfere with the marital status of the two major couples. The appeal was allowed and judgment of the High Court was set aside.

There are other landmark judgments as well but in this overall context, the importance of emphasizing the concept of age of majority and right to make a free choice that the basic elements of a dignified life are also the realization of the significance of the right to choose within the legitimate parameters of the law. The individual’s authority is supreme and no one possesses the right to dictate or limit a person’s choice. Our choices are cherished because they are ours. Indeed, it is not a privilege rather a right of a major and more importantly it is further protected by the Constitution of India which ensures that every person can make the determinations on the matters which is central to the pursuit of happiness and is the intrinsic part of liberty and dignity guaranteed by the Indian Constitution.

Grave Social Symptoms: The Unwarranted Interference and Distressful Silence

It is disheartening to see all the survey carried or report submitted have become veritable documents of the fact that consent of family or the society or the clan is still required to enter into a wedlock. Despite of the fact, no shackles can be placed on the choice of a major, still there is an unwarranted interference of the family or the society or the clan that guillotines the freedom and liberty guaranteed under the Constitution of India and the distressful silence of the protectors of this right succumbs the objective of our Constitutional guarantee of freedom of choice which is the quintessence of the 21st Century.

The 242nd Law Commission Report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” demonstrates that how crimes and unwarranted interference against persons marrying have the catastrophic and grave chilling effect on the individual’s right to choose. The report highlights that- “As far as India is concerned, “honour killings” are mostly reported from the States of Haryana, Punjab, Rajasthan and U.P. Bhagalpur in Bihar is also one of the known places for ‘honour killings”. Even some incidents are reported from Delhi and Tamil Nadu. Marriages with members of other castes or the couple leaving the parental home to live together and marry provoke the harmful acts against the couple and immediate family members.”

The Report also underlines the pernicious interference of caste/community assemblies in the guise of ‘Khap Panchayats’ that underscores the liberty and instil the terror by inhuman treatment and inflicting the excessively harsh punishments on those individuals who tried to do exogamous marriage. Unfortunately, these merciless hands haunt the dignity of the individuals in the name of ‘moral vigilantism’ and distressful silence of the society waters them to continue this evil practise.

In 2018, Lok Foundation-Oxford University Survey run by the Centre for Monitoring India Economy (CMIE) reported that just 3 percent of marriages are love marriages. According to the 2011-12 India Human Development Survey, only 13 percent of married women in metro cities knew their husbands prior to marriage. Arranged marriages do not imply forced marriages necessarily however, this fact cannot be ignored that most of the Indian families and communities try to maintain endogamous marriage.

REASON BEHIND SUCH GRAVE SOCIAL SYMPTOMS

It is apt to refer to the case of Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396 where the Hon’ble Supreme Court stated that many people feel that they are disgraced or dishonoured by the conduct of the young individuals who is related to them or belongs to their caste simply because they marry against their will or wishes or having an affair with someone, and as a result, they take the law into their hands and mentally, physically assault them and inflict the other atrocities which is not lawful in the eyes of law. The 242nd Law Commission Report mentions that the crimes against the young individuals take place as the result of doing exogamous marriage without receiving the family consent. Even the marriages between the young couples outside the gotra often called the violent reaction from the family or clan or society.

Ostensibly, it is clear that that the couples must be freed from the unlawful fetters or hindrances placed by the so-called social guardians who are doing nothing for the benefit for the society rather killing the soul of our Constitution. Hence, it is important to break down the same.

STEPS TAKEN

Undoubtedly, the Courts are playing the active and important role in asserting the choices of majors. For this reason, this particular subject matter becomes of utmost importance. The case of Sakti Vahini v. Union of India (2018) 7 SCC 192 is the evident and glaring example where the Hon’ble Supreme Court directed the police departments and State governments to adopt a robust mechanism to eradicate the crime of ‘Honour Killing’. The Hon’ble Court laid down certain guidelines which was preventive and punitive in nature. Also, the remedial measures were issued. However, if the governments and administrations at the different tiers will not work properly and become silent spectator then the importance of same will languish which is fortunately not in our case.

In order to boost and encourage the inter-caste marriages, the NDA government is providing Rs. 2.5 lakh for every inter-caste marriage with Dalit under the ‘Dr. Ambedkar scheme for social integration through inter-caste marriage’. This financial motivation was started in 2013 but there was a bar that total income must be less than Rs. 5 lakhs so that one can be eligible to receive the one-time monetary incentives of Rs. 2.5 lakhs. Recently, in order to infuse the teachings of BR Ambedkar in the society and to promote the social equity, the Ministry of Social Justice and Empowerment took this bold step and scrapped this bar. This will definitely help in the effective implementation and the administration of this scheme. Many states also have the similar schemes and protective, pre-emptive and corrective measures to curb the menace of crimes against the individuals and to assert their choices. For instance, Bihar government provides the National Saving Certificate amounting to Rs 25,000/- as monetary incentive to women performing inter-caste marriage. The Madhya Pradesh Government has a dedicated cell better known as ‘Crime Against Women Cell” that ensures the safety of couples.

CLOSING OBSERVATIONS

Indeed, The notion of ‘Significance of Age of Majority’ has achieved the landmark growth. Still, in the long growth, the directions issued by the Courts and policy, measures adopted by the Central and State governments has to reach at the grassroot levels and more importantly the society itself has to come forward to stamp out the acts of barbarism against the individuals “WHO HAVE ATTAINED THE AGE OF MAJORITY”.

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Policy & Politics

Second coronavirus wave, administration and Fundamental Rights

The pandemic saw the infringement of various Fundamental Rights guaranteed by our Constitution. The fundamental human rights that are most affected are ‘Right to Health’ and ‘Right to Life’ which also includes ‘Right to die with dignity’. In many well-known judgements, the Supreme Court and several High Courts agreed that the dead corpse should be treated with proper dignity and treated fairly. The Supreme Court recognised that right to life extends not only to living persons but also to their bodies after death.

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In the words of William Shakespeare which says “All that lives must die, passing through nature to eternity.”While death is regarded as a natural occurrence, the basic decent treatment that is anticipated and should be provided to the deceased does not always germinate and materialize naturally. We recently had to witness such tragic cases which have not only shocked the entire country but have also witnessed and drawn intervention towards this grave issue from all over the world.

Sightings of dead bodies floating on the bank of the holy river Ganga were reported in the country’s top newspapers. Villagers in Bihar and Uttar Pradesh discovered bodies in the Ganga and Yamuna rivers on May 11, 2021. Ganga, a holy river where people undertake various rituals in relation to ceremonies that are therein mentioned in their holy book, they not only perform ceremonies but also venerate river Ganga for its purity. On May 11, seven bodies wrapped in plastic bags were discovered floating in Uttar Pradesh’s Ghazipur and Hamirpur districts. Similar incidents have also been reported in the Baksar district of Bihar. The greatest concern among residents was that stray dogs and birds would devour the carcasses which would then result in spreading the coronavirus. However, instead of taking action against those responsible for the malafide attacks, the state authorities are now playing a blame game with one another. The world is in danger and the situation has been seen severely detrimental among masses. The heart-rending incidents from these states remind us of the last Mughal emperor and his poetic lament. Unable to find a final resting place in his beloved homeland (India), the last Mughal emperor quite rightly put forth the plight of the dead – Kitna hai badnaseeb Zafar dafn ke liye/Do gazz amen bhi na milikoo-e-yaar mein (How unlucky is Zafar! For burial, even two yards of land were not to be had in the land of his beloved). In the recent past, a ‘novel’ difficulty, similar to the ‘novel’ Corona Virus, has arisen for our contemplation, which would be guided eventually from the foundations of this present article. The article shall examine three major contentions vis-à-vis the issue of dead bodies which were found floating on the banks of river Ganga. Firstly, whether the actions of state authorities being negligent towards the horrendous issue i.e the floating of dead bodies, be condemned? Secondly, the fundamental right of a dead person, enumerated under the constitution of India violated or do we not owe a duty to cremate the deceased respectfully? Third, is there a need to amend the guidelines issued by the Ministry of Health and Family Welfare on management of corpses?

NEGLIGENCE ON PART OF STATE AUTHORITIES

The term other authorities that are enumerated under Article 12 of the constitution of India has given interpretation to the term ‘AUTHORITIES’ by the means of landmark precedents. It is settled law that the State under Article 12 is the custodian of the welfare and wellbeing of its citizens. However, looking at the present scenario the situation seems to be such where the actions on part of state authorities are not at all seems to be custodian but seems to become a warrior against the interest of masses.

Legislation derives its power from the constitutions of India, 1950 which grant the liberal interpretation of Articles 21, 48 and 51(g) by the Hon’ble Judges of Apex court and other courts across the country. In the famous case of Narmada Bachao Andolan v. union of India 2010 SCC 664, The Supreme Court has held that the right to clean water is a fundamental right under article 21 of the Indian constitution. Water prevention and control of pollution act of 1974 is the key specific legislation for preventing water pollution and for taking care and maintaining water bodies. It also aims for promoting for restoration of water bodies. For better implementation of the act, the Central pollution control board and the state pollution control board have been established by the Central and the state government. Under the aforesaid act, the board has the requisite power to encourage and conduct research and investigation with the view of promoting, the prevention of contamination of water in a significant manner and also to add the central government for the matters relating to environmental issues and for the prevention and control of water pollution. In the present issue, the duties and obligations that have been imparted to such boards and the ones enumerated in the aforesaid act have been brazenly ignored by state authorities. They have failed to impart their duties in such remorse condition because of which the lives of masses are now at stake. Hence, because of the aforesaid reason the actions of state authorities should be condemned.

DEAD PERSON TOO HOLDS A FUNDAMENTAL RIGHT

The flagrants acts during the pandemic has resulted in the infringement of various Fundamental Rights guaranteed by our Constitution.The fundamental human rights that are most affected are “Right to Health” and “Right to Life which also includes Right to die with dignity.” In many well-known judgements, the Supreme Court of India and many High Courts agreed that the dead corpse should be treated with proper dignity and treated fairly. The Supreme Court of India recognized that right to life, to fair treatment and dignity, extends not only to a living person but also to their bodies after death. In a landmark judgment (Common Cause, A Regd. Society V. Union of India & Anr.) delivered on 9th March, 2018, the Supreme Court of India held that the right to die with dignity is an intrinsic facet of the right to life under Article 21 of the Constitution of India. In fact, in the year 2007, the Madras high court in the case of S.Sethu Raja vs The Chief Secretary (2007) 5 MLJ 404 had held in Para 18 of the Judgment that the same human dignity (if not more) with which a living being is suppose to be treated by our tradition and our culture should also apply to the dead person and he too holds a right of dignified burial or cremation of a dead body. The right to decent burial is upholding in Indian context, but who is authorized for burial is not explained in any Indian Law. There is a strong societal interest in the proper disposition of the bodies of deceased person. It is universally accepted that a duty is owed to both society and the deceased that the body be buried without any unnecessary delay.

AMENDEDMENT IN THE GUIDELINES AMID COVID-19 IS ‘THE NEED OF THE HOUR’

A document containing ‘Dead Body Guidelines (COVID-19)’ – [hereinafter, ‘Document’], was released by the Directorate General of Health Services (EMR División), Minister of Health and Family Welfare of India on March 15, 2020. To date, it remains unamended and builds on the epidemiological understanding of COVID-19 of the Ministry at present. The aforesaid document lacks some crucial quintessential.

Thereby, the authors would like to propose some takeaways from the other jurisdiction of the nations across the globe, which can be included in the aforesaid guidelines for the benefit of the masses across the country.

The guidelines should be inclusive or seeks to impose a compulsory cremation of the covid-19 victims, which is foremost aimed to prevent local bodies from being able to cremate the body of the deceased overriding his/her religious belief.

In the midst of the global pandemic of covid-19 where graveyards and crematoriums crammed, the locals people of various states are of the view that there emerged shortage of woods for pyre, thereby resulted in the hike in the cost of cremation, whereby this becomes the sole reason why the bodies were buried or seen floating. Hence, the guidelines should impose a reasonable amount or capped a certain amount that crematoriums can charge from families at the time of cremation of a dead body.

Prices should be regulated for hearse or ambulance services so that people are not used and are not exposed to difficulty transporting dead bodies.

The guideline should impose sanction on those people committing horrendous acts such as throwing bodies in rivers, not cremating bodies as per rules enumerated therein.

In order to avoid health risks from smoke emission from burning pyres in large numbers, the use of electric crematoria can be encouraged.

The burial or cremation of masses should not occur because it infringes the right to dignity of the dead.

CONCLUSION

India has been overwhelmed by a devastating second wave of the pandemic in recent weeks. It has recorded more than 25 million cases and 2,75,000 deaths. But the experts say the real death toll is several times higher. The bodies dumped on the river banks and the funeral pyres burning round the clock and cremation grounds running out of space are the proof that the official tally of deaths represent a substantial undercount of the true burdens. In recent times, various eye opening incidents surfaced through media wherein humans were seen to be treated worse than animals. There were interminable news reports which reported incidents like dumping of corpses in a pit at a burial ground without performing their last rites. Many photographs and videos of the half burnt and decomposed dead bodies have gone viral on social media. In order to stop this menace that is bulging the entire nation, all those aforesaid measure as stated hereinabove should be adopted and the the adminstration should pay heed and curb against all those activities that are disturbing not only the rights of dead person but all the right of a living person.

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Policy & Politics

Freedom of speech & sedition law in India : An analysis in the light of recent controversy

The definition of sedition must be narrowed down to encompass only the problems pertaining to the territorial integrity of India, in addition to the sovereignty of the country. The word ‘sedition’ is extraordinarily nuanced and needs to be implemented with caution. It should rarely be used but kept by and large as a deterrent.

Raju Kumar

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INTRODUCTION

It is an irony for the mostdemocratic nation, ie, India, where freedom of speech and expression has been granted under the Indian Constitu- tion, and while exercising their power enshrined un- der the Constitution of India. they are being booked for the offence of sedition. Accord ing to the report of Rights and Risks Analysis Group, as many as 55 journalists were targeted by the government during 25 March and 31 May for covering facts about the government handling of the Covid-19 pandemic.

Recently, the Supreme Court of India has quashed the sedition case registered against senior journalist Vinod Dua in Himachal Pradesh. The verdict was pronounced by a single judge bench led by Hon’ble Justice UU. Lalit.

Vinod Dua was booked for sedition for criticising the Narendra Modi government’s handling of the Covid-19 lock down and had uploaded the same on Youtube last year, While granting the relief the court relied on the principles laid down in the Judgment of Kedar Nath. The judg ment was delivered in the year 1962, where the consti- tutional validity of sedition law in India was validated. However, it was observed that free speech, discussions on matters of government functioning and their criti cism, and freedom of press are “essential for the proper functioning of the processes of popular government Currently, in the Vinod Dua case, the Hon’ble Court has also observed that the jour nalist will be entitled to pro tection under the judgment”.

It was further observed that “It must, however, beclarified that every Journalist will be entitled to protection in terms of Kedar Nath Singh, as every prosecution under Sections 124 and 505 of the IPC must be in strict conformity with the scope and ambit of said Sections as explained in, and completely in tune with the law laid down in Kedar Nath Singh”. The Court Held that

HISTORICAL

BACKGROUND OF SEDITION LAW

Sedition laws were enacted during 17th century England, when the lawmakers believed that only good opinions of the government should survive as the criticism of a Govern- ment may result in detri- mental to the government and monarchy. The law was originally drafted in 1837 by the father of the Indian Penal Code, Thomas Macaulay, but it was omitted when the In- dian Penal Code (IPC) was enacted in the year 1860.

Many freedom fighters were charged under this provision which includes the case of Joggendra Chandra Bose, who was the editor of the newspaper, Bangbosi, who wrote an article criticis ing the age of consent Bill for posing a threat to the religion and for its coercive relation ship with Indians.

Great freedom fighters like Bal Gangadhar Tilak and Mahatma Gandhi were also booked under this offense.

SEDITION LAW IN INDIA: CURRENT SCENARIO

Sedition is an offense under Sectio 124A of the Indian Penal Code (Hereinafter re- ferred to as IPC), 1860. See tion 124A IPC, defines the offense sedition when “any person by words, either spo- kenorwritten, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or con- tempt, or excites or attempts toexcite disaffection towards the government established by law in India”. Disaffection also includes disloyalty and all feelings of enmity. How ever, it is here notable that comments without exciting or attempting to excite ha tred, contempt or disaffee tion, will not constitute an offense under this section.

PUNISHMENT FOR SEDITION

Sedition is a non-bailable offense. Punishment un der Section 124A ranges from imprisonment up to three years to a life term. to which fine may be added. It is also notable that if a person is charged under this law, he will be barred from a govern ment Job. They have to live without their passport and must produce themselves in
constitutional. Furthermore, it was also held that the dis turbing the public order will mean nothing less than en dangering the foundations of the Stateor threatening its overthrow: These Judgments prompted the First Constitu tion Amendment, where Ar ticle 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”. In the year 1962, in the historic judgment of Kedar Nath Singh vs State of Bihar. the supreme court decided on the constitutionality of See tion 124A. The Hon’ble court upheld the constitutionality of sedition, but had limited its application to “acts involving intention or tendency tore ate disorder,ordisturbance of law and order, or incitement to violence”. Itdistinguished these from “very strong speech” or the use of “vigor ous words” strongly critical of the government.

In the year 1965, the Su preme Court, in the judgment of Balwant Singh vs State of Punjab, held that mere slo ganeering which evoked no public response did not amount to sedition.

ARGUMENTS FOR SECTION 124A

The Provision of Sedition law has its application in fighting anti-national, secessionist and terrorist elements. It is argued withinside the fa- vour of this law that, it pro tects the elected government from tries to overthrow the authorities with violence and unlawful means. The continued existence of the government set up through regulation is an important circumstance of the stability of the State. Furthermore, it is also believed that if Contempt of court results in the penal action, the contempt of Gov ernment should also attract
the same.

ARGUMENTS AGAINST SECTION 124A

The Provision of Sedition Law isarelic of colonial lega cyand it is not fit for democra- ey This is a restriction on the legal exercise of the freedom of speech guaranteed by the Constitution. Government disagreements and criti cisms are an important part of healthy public debate in dynamie democracy. They should not be constructed as sedition. It is notable that The British who resisted the suppression of the Indians overturned their countrys laws. India has no reason not to abolish this part and
the time has come to amend this portion. It is also argued against this law that the terms usedunder Section 124A like disaffection are vague and subject to different interpre- tations to the whims and fan- cies of the investigating offi- cers. The sedition law isbeing misused as a tool to persecute political dissent. A wide and concentrated executive dis- cretion is inbuilt into it which permits the blatant abuse.

CONCLUSION AND WAY FORWARD

Dr Justice (Retd.) Balbir Singh Chouhan has observed that “The sedition law needs reconsideration”. Since the creation of this British Sedition Law, its application has always been inconsistent. In all cases, its application is vague and self-contradictory. Considering that it is used to suppress the masses, when it serves the masses, its application was initially vague. It is used as a tool to strengthen political motivations by preventing speeches that threaten the authority of the country. A clear and unam- biguous explanation of the crime. In recent years, the ap- plication of the sedition law has been too arbitrary and has become a controversial topic. Although our sedition position was established in 1960, it still exists. Over the past 50 years, Indian society has developed rapidly, and people have shown “toler ance” towards summons and violence. The nature of the government has also changed, and people’s under- standing of the government is different from that of its representatives.

India is the largest de- mocracy of the world and the right to free speech and expression is a vital aspect of democracy. The expres- sion or thought that isn’t in consonance with the policy

Freedom of speech & sedition kew in India: An analysis in the light of recent controversy

of the government of the day must now no longer be taken into consideration as sedition. Section 124A mus now no longer be misused as a device to scale down loose speech. The SC caveat, giver in Kedar Nath case, on pros ecution beneathneath the regulation can test its misuse It needs to be tested under the modified facts and situation: 1 additionally at the anvi of ever-evolving tests of ne cessity, proportionality and arbitrariness. The higher judiciary must use its super visory powers to sensitize the magistracy and police to the constitutional provision: protective free speech. The definition of sedition mus be narrowed down, to en compass only the problem: pertaining to the territoria integrity of India in addi tion to the sovereignty of the country. The word ‘sedition is extraordinarily nuancec and needs to be implement ed with caution. It is sort of a cannon that ought now no longer for use to shoot a mouse; however the arsena additionally needs posses sion of cannons, by and larg as a deterrent, and sometimes for shooting.

India is the largest democracy of the world and the right to free speech and expression
is a vital aspect of democracy. The expression or thought that isn’t in consonance
with the policy of the government of the day must now no longer be taken into
consideration as sedition. Section 124A must now no longer be misused as a device
to scale down loose speech. The SC caveat, given in the Kedarnath case, can test its
misuse. It needs to be tested under the modified facts and situations and additionally
at the anvil of ever-evolving tests of necessity, proportionality and arbitrariness.

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Policy & Politics

Tax on ocean freight: A case of inequitable double taxation at its best

Supply of ocean freight service is not covered either by Section 7 (inter-state supply) or Section 8 (intra-state supply) of the IGST Act. The Act does not contemplate levy or collection of tax from a person who is neither the supplier nor the recipient of supply.

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HOW TAX ON OCEAN FREIGHT WORKS

 Ocean Freight is a method of transporting huge quantities of goods through the sea. The levy of taxes on Ocean Freight has been a matter of dispute in India for a while now. The GST law requires the importers to pay tax on ocean freight services under Section 9(3) of the CGST Act and Section 5(3) of the IGST Act, better known as the ‘Reverse Charge Mechanism’.

The location of the Service Provider (SP) and the Service Recipient (SR) must be considered. If the location of the SP and the SR is in India, Section 12(8) applies. But when the Location of SP or SR is outside India, the location of the SR is considered, unless the location of the SP is not known, then the SP’s location is considered but only for transportation [under Section 13(9)]. If the SP and SR are both outside India, the Importer is liable to pay IGST @ 5%. In addition to this, the importer also pays customs duty, freight on the CIF (Cost, Insurance and Freight) value and insurance even if the importer has paid IGST on the CIF value, he is still required to pay GST on ocean freight. This, is what any prudent person would term as “double taxation”.

When it comes to import on the CIF basis, the foreign supplier transports goods from a place outside India through a foreign shipping agency, to a port located in India. In CIF, the freight is paid by the foreign exporter to the shipping agency and the foreign supplier transports such shipment through the foreign shipping agency.

BEFORE GST

 From 01.06.2016, transportation of goods from a place outside India up to the customs clearance station in India became liable to service tax, through the Finance Act, 2016. But an exemption was given for services by way of transportation of goods by an aircraft from a place outside India up to the customs clearance station.

If the service provider was situated outside India, the liability to pay service tax would be on the service recipient. In Free on Board (FoB) imports, service tax would be payable by the shipping line, if the shipping line was based in India; and the service tax would be payable by the importer under reverse charge if the shipping line is not based in India.

In case of CIF imports, there was no service tax levy on freight, as the service provider as well as the service recipient are situated outside India.

There existed ambiguity in levy of service tax that was attracted on ocean freight component only in case of FOB imports, and not attracted for CIF imports.

Vide Notifications dated. 12.01.2017 (Notification 3/2017) and 20.06.2012 (Notification 30/2012 ST), some efforts were made to clear the ambiguities. In addition to this, in respect of services provided or agreed to be provided by way of transportation of goods by a vessel from a place outside India up to the customs clearance station in India, the person liable for paying service tax other than the service provider would be the person in India who complies with sections 29, 30 or 38 read with section 148 of the Customs Act, 1962.

In addition to this a series of Notifications were issued pursuant to the problem at hand:

 1. Vide Notification dated. 13.04.2017 (Notification 2/2017 ST), the definition of “person liable for payment of service tax” under Rule 2 (1) (d) (i) was amended and a new sub rule (Rule 7CA) was introduced in the Service Tax Rules, 1994.

 2. Vide Notification dated. 13.04.2017 (Notification 14/2017 ST), a new rule, Rule 8B was introduced in Point of Taxation Rules, 2011, which spoke about the “Determination of point of taxation in case of services provided by a person located in non-taxable territory to a person in non-taxable territory.”

3. Vide Notification dated. 13.04.2017 (Notification 10/2017 CE NT), the definition of “input service” in the CENVAT Credit Rules, 2004, was amended to further facilitate proper implementation of the respective tax provisions.

The importer was thus made liable to pay service tax for the services of transportation of goods by vessel from a foreign port to Indian port in case of CIF imports.

 The above position continued up to 30.06.2017, i.e., until the introduction of GST.

UNDER GST

 And as per Section 14 of the Customs Act, 1962, the value of the imported goods shall be the transaction value of such goods for the purpose of levy of Customs duty and such transaction value in the case of imported goods shall include, in addition to price, any amount paid or payable for costs and services, including commissions and brokerage, royalties and licence fees, costs of transportation to the place of import, insurance, loading, unloading and handling charges to the extent as per Rule 10(2) of the Customs valuation (Determination of Value of Imported Goods) Rules, 2007.

Section 5(3) of the IGST Act, 2017 empowered the Centre to issue notification, specify categories of supply of goods or services or both, the tax on which shall be paid on reverse charge basis by the recipient of such goods or services or both and the recipient of such goods or services or both is liable to pay tax under reverse charge in relation to the supply of such goods or services or both.

Where the value of taxable service provided by a person located in non-taxable territory to a person located in non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India is not available with the person liable for paying integrated tax, the same shall be deemed to be 10 % of the CIF value of imported goods.

How ocean freight suffers double taxation

Ocean freight component suffers tax twice; first, it suffers IGST as component of Customs Duty on imported goods on CIF basis and second time IGST @ 5% in the form of Import of Services (Reverse Charge Mechanism) for payment by the importer. Therefore, IGST payment is levied twice on Ocean freight in the guise as part of transaction value of imported goods.

The impugned notifications are contrary to the provisions of Article 265 of the Indian Constitution which says that “no tax shall be levied or collected except by authority of law”. A delegated legislation (includes the notifications herein or rules) cannot provide levy or collection of tax which is not authorised by the parent statute.

 Supply of ocean freight service is not covered either by Section 7 (inter-state supply) or Section 8 (intra-state supply) of the IGST Act. The Act does not contemplate levy or collection of tax from a person who is neither the supplier nor the recipient of supply.

A person other than a recipient cannot determine the “time of supply” as per the provisions of Section 13 of the IGST Act. In addition to this, Input Tax Credit can only be availed by the recipient of the supply which are intended to be used in the course of furtherance of business, under the provisions of Section 16 of the Act.

 The Supreme Court in case of State of Rajasthan v. Basant Agrotech (India) Limited [2014 (302) E.L.T. 3 (SC)], held that the rule of construction of a charging section is that before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section. No one can be taxed by implication. A charging section has to be constructed strictly. If a person has not been brought within the ambit of the charging section by clear words, he cannot be taxed at all.

Commissioner of Central Excise v. Acer India Limited [2004 (172) E.L.T. 289 (S.C.)], the SC held – “The intention of the legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic result sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plan, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute, then there is no tax in law.”

The Hon’ble Gujarat High Court in the case of Mohit Minerals Pvt. Ltd. Vs. Union of India [Special Civil Application No. 726 of 2018], has set aside IGST on Ocean Freight and held that no tax is leviable under the IGST Act, 2017 on the ocean freight for the services provided by a person located in a non-taxable territory by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India and the levy and collection of tax of such ocean freight under the impugned Notifications is not permissible in law and that taxing ocean freight is ultra vires and leads to double taxation.

Despite the attempts of the judiciary in defending the very concept of negating any occurrence of double taxation, the efforts made to amend the imprudent levy of IGST on ocean freight, or so to say, the lack thereof, is still very unsettling.

A person other than a recipient cannot determine the “time of supply” as per the provisions of Section 13 of the IGST Act. In addition to this, Input Tax Credit can only be availed by the recipient of the supply which are intended to be used in the course of furtherance of business, under the provisions of Section 16 of the Act.

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Policy & Politics

NCRTC SIGNS MOU WITH SECL FOR USING BLENDED RENEWABLE ENERGY FOR ITS DELHI-GHAZIABAD-MEERUT RRTS CORRIDOR

Tarun Nangia

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In line with its vision to improve the quality of life of people, National Capital Regional Transport Corporation (NCRTC) has signed MoU with SECI (Solar Energy Corporation of India) today to harness blended renewable energy for RRTS. MOU has provisions to explore possible opportunities in electric/ transformative mobility, Hydrogen based economy, and other alternative sources of fuels and energy.

MoU was signed in presence of Jatindra Nath Swain IAS, Secretary (Fisheries), GOI & CMD/SECI, Vinay Kumar Singh, Managing Director/NCRTC and Mahendra Kumar, Director(E&RS)/NCRTC alongwith other senior officials of NCRTC and SECI.

NCRTC, as part of its Energy Management Policy, intends to maximize the use of blended renewable energy such as solar power etc. for meeting full energy requirement of NCRTC. SECI, being an industry leader, will help in arranging blended renewable energy to NCRTC round the clock at affordable rates for Delhi-Ghaziabad-Meerut Corridor and cooperation to extend the same for other future corridors.

Use of clean energy, through this association will ensure reduction in expenditure on electricity and significantly lesser CO2 emissions, which is essential for sustainable development.

This cooperation is a part of NCRTC’s long term strategy to make RRTS and NCRTC financially as well as environmentally sustainable.

NCRTC is adopting following measures also for energy efficiency in India’s first RRTS corridor-

1. All elevated RRTS stations and depots will be provided with solar panels.

2. NCRTC is targeting to generate minimum 10 MW renewable energy.

3. 40% of the total energy requirement of Delhi Meerut RRTS corridor is targeted to be procured/generated from renewable energy.

4. RRTS rolling stock will be provided with state-of-the-art regenerative braking system which converts train’s kinetic energy into electrical energy..

5. Regenerative braking will result in reduced wear and tear of wheels, brake pads and other associated moving brake-gear parts of rolling stock resulting in significantly less consumption of these spare part/items during train maintenance life cycle which again will result in substantial reduction in CO2 emission which otherwise would have been generated in the manufacturing and supply chain process of these spare parts/items.

6. RRTS trains will have push buttons for selective opening of doors on need basis. This eliminates the requirement of opening all doors at every station, thus leading to energy saving. RRTS rolling stock will have lighting and temperature control systems to enhance the passenger experience with less energy consumption.

7. All RRTS station and their premises, depot, office spaces and trains will be equipped with energy-saving LED lights.

8. Platform Screen Doors will be installed at every RRTS stations that will help in saving significant energy consumption in underground stations.

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Policy & Politics

TARGETED POLICY SUPPORT TO ENGINEERING EXPORT SECTOR NEEDED, SAYS EEPC INDIA

Tarun Nangia

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The growth in outbound shipments has been robust in the last few months and the outlook remains positive for the current year but rising cost of key raw materials especially steel is an area of concern, said EEPC India Chairman Mr Mahesh Desai.

As expected, the value of engineering goods exports jumped 53% to US$ 8.64 billion in May, 2021 as against US$ 5.65 billion in the corresponding month last year primarily due to low base effect and increasing demand from key markets.

“Soaring prices of various metals is a big challenge for the engineering goods manufacturers which were badly affected by the Coronavirus outbreak and the subsequent lockdowns,” he said.

While hoping that the rates for the export promotion scheme RoDTEP would be announced shortly, the EEPC India Chairman expects the government to provide more targeted support as suggested by the RBI.

Announcing the decisions of the Monetary Policy Committee (MPC) on June 4, RBI Governor Mr Shaktikanta Das had said that conducive external conditions were forming for a durable recovery beyond pre-pandemic levels. He further said that the need of the hour is for enhanced and targeted policy support for exports.

EEPC India Chairman said that while the export outlook has been projected to be positive in the current fiscal, there were downside risks too given that public health experts have predicted a possible third wave of the pandemic.

“The efforts must be made now to minimise the impact of pandemic on trade and business as protecting livelihood is no less important than lives. The plans should be in place to ensure goods movement, especially export consignments, are not affected by lockdowns, night curfews or any other restrictions imposed by states to prevent the spread of virus,” Mr Desai said.

Announcing the decisions of the Monetary Policy Committee (MPC) on 4 June, RBI Governor Shaktikanta Das said that conducive external conditions were forming for a durable recovery beyond pre-pandemic levels.

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