According to some estimates nearly 40 percent of the country comprises of children- below 18 years- this is a substantial demographic. This week marks two significant days for children. November 14th is marked as Children’s Day across India to celebrate Nehru’s birthday. November 20th is marked as World Children’s Day internationally to commemorate the Geneva Declaration of the Rights of the Child. It is important to look at issues around child welfare that we as a country and a society must address collectively.
First and foremost perhaps, is the need for poverty alleviation. In some good news, between 2005 and 2016, India lifted 270 million people out of poverty according to a report by the Oxford Poverty and Human Development Initiative (OPHI) in collaboration with the United Nations Development Programme. This is an impressive feat- to put things in perspective, the entire population of the UK is around 67 million.
Having said that, it is no secret that poverty is a huge concern for the country. The covid situation may possibly make it worse. This means that sadly, a huge part of the population is still malnourished- according to some estimates about 40 million children. The state has taken some incredible steps- the mid-day meal scheme for instance is a step in the right direction. Not only does it ensure education for all, it does so whilst also ensuring at least one nutritional meal is afforded each day. Perhaps one of the largest such schemes in the world- more than 12 crore meals are served in our schools daily. This is an excellent initiative- yet a huge number of children are unable to avail this- on account of not being able to go to school.
Second, education is a crucial need for all children. Article 21 A makes education for children between 6 and 14 as compulsory. The Right to Education Act of 2009 furthers this objective by providing free and compulsory education for all. The 83rd Amendment to the Constitution made it a fundamental duty on every parent or guardian to ensure that their child or ward is provided education between the age of 6 and 14. These are all steps in the right direction. However, going forward, the applicability of these provisions must be strictly monitored. The quality of education should similarly be monitored to ensure parity across all schools and quality education that is world class and in line with the world standards. Private schools must accommodate students from all financial backgrounds.
Third, the protection and safety of the children is absolutely non negotiable. It is essential that the health- mental as well as physical health of each child is taken care of. This also includes protection from any harm. The Protection of Children from Sexual Offences (POCSO) Act, 2012 is one such legal instrument. It makes it mandatory to report sexual assaults on children. It also balances out the form of trial and courts have been sensitive to witness protection of children. Similarly family courts continue to adopt practices to limit damage to children. Those who come into conflict with laws are to be dealt with under Juvenile laws. We need a comprehensive study of these laws- to ensure complete protection of our children and ensure that each child is given the best possible opportunity to grow and if appropriate, reform.
Human trafficking continues to be a dreadful threat- leading to abduction and kidnapping of children that further leads to exploitation, including child labour. To truly stop this- not only do enforcement agencies need to be on top of it all- the role of the civil society to report such crimes and the role of the international community to help detect these is also crucial. A concentrated effort of all sections needs to be made to stop this immediately.
Last, it is important that any action we take as a nation- ranging from our education policy to environmental decisions should all be taken keeping the interests of our children and the future generations in mind. Education should be wholesome and practical. Environment degradation needs to be reversed with particular zeal. The pollution, for instance, effects children disproportionately. This needs to become a top priority to ensure healthy children who are able to have a happy childhood.
The great Rabindranath Tagore once remarked ‘Every child comes with the message that God is not yet discouraged of man.’ This children’s day, we must reflect on ensuring that each child has the happiest and safest childhood possible. They should not be bridled, cabined and cribbed by the social evils of child labour, poverty or lack of opportunity. It is them, after all, in whom we invest our futures.
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Poverty not a curse, sterling efforts needed to be wealthy
Mukesh Ambani has added a feather to India’s cap by figuring among the richest in the world.
Let me tell you a story of Mukesh Ambani’s vision. Reliance Group has a huge petroleum refinery in Jamnagar, Gujarat. A large area was lying barren around it. Mukesh Ambani felt that if trees and plants are planted on this land, the pollution of the refinery can be absorbed. When Mukesh Ambani decided to plant mango orchard on 600 acres of barren land, people harboured serious reservations about the success of his project.
The soil of Jamnagar and the moisture there has salinity and the winds blow at a high velocity too. In such a situation, would it be right to plant a mango orchard? This was the question in everyone’s mind, but Mukesh Ambani had decided and insisted that only mango orchard would be planted there. That was in 1997. Today, after 23 years, the salinity of the soil has been controlled, the winds have been taken care of and there are more than 1.5 lakh mango trees of about 200 species. Mangoes from this orchard are being exported all over the world because of its unmatched quality. The name of this mango orchard in Jamnagar is ‘Dhirubhai Ambani Lakhibag Amrayee’. For your information, let me tell you that the word ‘Lakhibag’ was the name of a mango grove developed by Mughal Emperor Akbar near Darbhanga in Bihar.
I told you this story so that you can understand how important it is to have vision, devotion and dedication to your work to become rich. After all, Dhirubhai Ambani started his journey from zero and built a big empire on his own. After that, one of his two sons raised his empire and the other collapsed on the ground. It is clear from this that even if you get a huge wealth by luck, you do not necessarily climb the stairs of success. It takes strength, concentration and balance to climb. Just one mistake is enough to fall! Let’s just think of Tata-Birla, Ambani-Adani, Hinduja, L N Mittal or Sajjan Jindal, Singhania, Anand Mahindra, you will find that their family started from zero. Infosys is an excellent example of our times. Narayan Murthy had laid the foundation of Infosys with a capital of only Rs 10,000. Adani started from the very bottom. Today, their success stories are for all to see. It is obvious that all this does not happen by sheer luck. For this, action and vision are required.
Many people continue to criticise industrial and business groups indiscriminately. Be it Ambani group or Adani group or someone else. People do not miss any chance to say that the government has always been ‘favourable’ to them. To me, these are all stupid and meaningless outpouring. No one can become ‘Kuber’ only with ‘favours’. For that, capacity needs to be increased manifold. Do not discuss what kind of house Ambani lives in, by which aircraft he travels, how many vehicles he has and how the wedding took place in his house. If at all, discuss that Ambani has given work to millions of hands. India has advanced in the world of technology. Do you know that while some people swindled Rs 15 lakh crore of the banks, Mukesh Ambani does not owe a single rupee to any bank! Consider why Mukesh Ambani flourishes in every sector he enters? Be thankful to all these industrialists that they have played and are playing an important role in the country’s progress. When I see the tricolour waving at The Pierre, a Taj Hotel in New York, my chest swells with pride. Isn’t it a matter of pride that Tata bought a global brand like Land Rover?
I have close proximity to almost all the industrialists I am referring to here and I know their lifestyle very closely. Humility, spontaneity and focus are their greatest assets. They have not become rich in a day. They have achieved this position through hard work. Therefore, do not curse poverty. Poverty is not a curse at all. Poverty can be transformed into prosperity by sterling actions and efforts. I know hundreds of such administrative officers who were born in a poor family but are occupying high posts today. Babasaheb Ambedkar was also poor but due to his talent, he is remembered with reverence all over the world today. Our former President APJ Abdul Kalam is the biggest example of this. His father was a fisherman and Kalam used to sell ‘beedis’ as a child. He became the best scientist in the world and also adorned the country’s highest position. Lal Bahadur Shastri rose from poverty to become the Prime Minister of the country. M S Kannamwar who once sold newspapers, became the chief minister of Maharashtra. People like Jeff Bezos, Bill Gates, Elon Musk, Mark Zuckerberg have also risen from the state of extreme poverty to reach the summit. Former presidents of America, Bill Clinton or Barack Obama, hailed from very humble origins. Elsewhere across the world, there have been many prime ministers, presidents, industrialists, great writers and scientists who were born poor, but they overcame their poverty through their ability and reached the top. So don’t accept poverty as a curse, take your steps, develop your potential. Success is waiting for you! The need of the hour is dedication, out-of-the-box thinking and perseverance… So what are you waiting for!
The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha. firstname.lastname@example.org
I congratulate Mukesh Bhai that he has not only joined the select list of wealthiest persons in the world with his devotion, dedication and vision but also made the country proud. True, if the capabilities are utilised to the full, one can scale the summit. Mukesh Bhai has proved his mettle and ability in every field.
Making it happen: Mission Kayakalp
Crackdowns and raids on illicit liquor makers and sellers in UP’s Barabanki district revealed some bitter truths. Many of those being arrested would go right back to their ‘trade’ after release. And, most of those involved were stuck in this trade due to lack of alternative sources of income.
Illicit liquor is a massive social, economic and law enforcement nightmare across India. It has been known to destroy innumerable lives by death, criminal conviction, disability and addiction apart from ruining livelihoods, families and health. The brunt of this evil is most intensely felt by the poor and illiterate classes.
In January this year Dr Aravind Chaturvedi was posted as the Superintendent of Police of Barabanki, a district of UP adjoining its capital city Lucknow. Barabanki is a prosperous district but it has some great challenges. It is notorious for narcotics and illicit liquor. Hence, the first priority for Aravind on being posted there was to curb these criminal activities.
Crackdowns and raids on illicit liquor makers and sellers across the district, revealed some bitter truths. Many of those being arrested would go right back to their ‘trade’ after release. And, most of those involved were stuck in this trade due to lack of alternative sources of income. Ironically, a few villages had almost all residents involved in illicit liquor making. The issues were discussed were discussed at length with colleagues. On ascertaining the details, they were able to spot a few villages which were worst affected. One of the places with highest concentration of such cases was a small village of Chaynpurwa in Ramnagar tehsil of the district. This became the centre of the initiative.
Chaynpurwa is a remote village, cut-off from the nearby suburbs on account of being surrounded by the expansive Bhagahar Lake on three sides. The people here had lost a lot to the illicit liquor trade. Out of the 94 families of this village, 32 women were widows. Only 6 men in the entire village were in a condition to work. The others were in jail, handicapped or heavily addicted. Most children didn’t go to school and those who did, faced economic hurdles and social stigmas. It was a painful sight.
Uplifting a village out of poverty is a difficult task, but lifting one out of the grip of crime and poverty is a much bigger challenge. Rehabilitation that was not considered a part of Police’s regular duty was initiated. It was initially frowned upon. However, soon the thought behind it and the prospect of improving the lives of people of an entire village came to be appreciated. The initiative soon got wholehearted support.
The first step was to organise a “Police Chaupal”, a gathering of all residents of Chaynpurwa and nearby villages, hosted by the local Police and attended by Aravind himself and Circle Officer, Ramnagar along with Inspector, Ramnagar. Villagers were given opportunity to speak about their problems, compulsion towards illicit liquor trade and socio-economic challenges. The stories that came out of the meeting were painful and heart-wrenching. “Mission Kayakalp” started taking shape consequent to this meeting
A survey of the village was conducted in Chaynpurwa village to obtain basic data about the village and its residents. This survey provided critical insights into the state of the village and its people. With the exception of 4 families which had at least one employed member, 90 of the village’s 94 families needed immediate assistance if they were to be emancipated from illicit liquor trade.
Priority now was to come up with a suitable, sustainable and circumstantially practical occupation alternative. A series of discussions with District Magistrate of Barabanki Dr Adarsh Singh, a passionate leader and Chief development Officer Medha Roopam, a bright officer brought forth a few options. Out of these, beekeeping seemed an appropriate and practicable choice. The villagers were briefed about this. A training session was arranged for them. Support also came from bank authorities who promised to provide loans.
Dr Adarsh Singh’s support for Mission Kayakalp and his personal interest and backing to the initiative gave Chaynpurwa Village the attention and resources of 26 Government departments under the district administration. Medha Roopam herself went to the village with officials from various departments to make the residents of Chaynpurwa aware about Government schemes and programmes and provided eligible persons all the benefits.
The above events took place during the period between mid-August and mid-October this year. Bee farming in North India starts only after mid-November. Hence, an idea was mooted to help them generate some interim income through making and selling candles for the upcoming Diwali festival. This initiative was started and sponsored by Barabanki Police but Nimit Singh, an empathetic entrepreneur who owned bee farms, honey processing units and honey export played an important role
Nimit provided the women of Chaynpurwa training and raw-materials to make various types of diyas from bee-wax. The sale of these Diyas soared beyond expectations and close to 5 lakh diyas were sold in the weeks leading to Diwali. With a total amount over Rs 6 lakh earned by the village from these diyas in one month, an average income of Rs 7,000 was received by almost every household in the village. A grand “Deepotsav” was organised in collaboration with Umeed Foundation of Lucknow to honour and recognise the self-awareness and inspirational hard work done by the people of Chaynpurwa. For them it was an ecstatic moment to be the centre of focus of a program at such a scale and in the presence of top authorities.
The plan, alongside setting up bee-farming infrastructure, is to get a Community Hall built in the village so that a common space may be available for conducting training programs and provide an organised working area. Another plan on the anvil is to try and direct the energy of young children of this village in a positive, productive direction by arranging holistic orientations, building an open gym or recreation centre and motivate them to be diligent towards education. On the economic front with a long-term horizon, efforts are being made to attract the schemes of UP Government’s Khadi and Village Industries Board to provide a stable source of income to the village. These will include training them on electric pottery machines known as “Electric Chaak”, developing a stitching unit or a Agarbatti and candle making unit.
Setting up of a ‘trust’ by the name of “Chaynpurwa Kayakalp Foundation”, consisting of motivated private individuals for the welfare of villages like Chaynpurwa is also being planned. The objective is to provide sustainability to the project. Chaynpurwa village is on a path to turn its life around, look to a bright future and produce good law-respecting citizens.
The initiatives taken by Aravind clearly demonstrate that despite enormous hurdles, if an officer so desires, she/he can make-it-happen.
Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.
Uplifting a village out of poverty is a difficult task, but lifting one out of the grip of crime and poverty is a much bigger challenge. Rehabilitation that was not considered a part of police’s regular duty was initiated. It was initially frowned upon. However, soon the thought behind it and the prospect of improving the lives of people of an entire village came to be appreciated. The initiative soon got wholehearted support.
States must stop talking about lockdowns
Voices are coming from certain states that it’s time for another lockdown, possibly partial, to tackle the rising number of Covid cases. It is hoped that such thoughts will stay at the level of contemplation and will not translate into reality, especially when economic activities are finally starting to pick up after a prolonged lockdown-induced slump. In fact, this whole argument about cases multiplying needs to be assessed carefully, especially since except for a handful of states—particularly Delhi, Kerala and Maharashtra—the numbers are anything but “humongous”. The active Covid cases in a country with a billion-plus population is fewer than 4.5 lakh—443,486, to be precise, on Tuesday. If the number of people affected has crossed the 90 lakh-mark, it must also be recognised that over 85 lakh of those infected have recovered, with the recovery rate being 93.68%. And while even one death is a huge loss, and here more than a lakh lives have been lost, the fatality rate is as low as 1.46%, which is among the lowest in the world. The problem is indeed “humongous” in Delhi (40,212 active cases), Kerala (65,982) and Maharashtra (82,521). Delhi’s (population 1.9 crore) figures are particularly worrying, considering the number of its active cases is nearly double that of a state as populous as Uttar Pradesh (23,806 active cases and 20.4 crore population). Hence, Delhi needs special efforts to control the pandemic—but barring shutdowns. However, why will a state like Gujarat, with 13,600 active cases, impose night curfews in four of its cities, including Ahmedabad, which has 2,906 active cases? It defies logic.
This piece is not advocating taking the risk of Covid-19 lightly. If infected patients require hospitalisation and intensive care, it can have a debilitating impact on household finances. Also, there is a great degree of uncertainty about the way the infection is affecting people of all age groups, particularly those with co-morbidities. However, there is also enough anecdotal evidence to suggest that in a majority of cases, home quarantine and a combination of medicines are proving to be effective, resulting in recovery. Responsible social behaviour—including wearing masks, washing hands and social distancing—is a must to avoid the infection, but it must come naturally, and not be enforced. Also, fear mongering about the infection hitting India in waves and causing untold devastation is best avoided. India has successfully defied all predictions of “apocalypse” by analysts based on foreign shores and there is no reason to believe that it will not do so in the future as well. Even the World Health Organization is saying that community transmission of the virus has not taken place in India—what we are witnessing are clusters of infection. While it is not pleasant learning to live with the virus, but that’s exactly what seems to be happening—which also explains the “teeming millions” at public places.
While the wait for the vaccine is supposed to be getting over, it is not yet known how effective the vaccine will be, given the rapidity with which the virus is mutating; more importantly, how soon the vaccine can be reached to the 1.3 billion people of this country. It cannot happen inside a few weeks, or even months, or perhaps even years. What happens in the intervening period? The fact is, the therapy route is proving to be effective in India and even before the vaccine reaches all Indians, we could well be on our way to gain herd immunity. In the meanwhile, lives and livelihoods cannot be shut down. Things will have to come back to normal, soon, else there will be disaster—in real terms. So, all talk of curfew and lockdown must be avoided.
Why India needs to rethink its Tibet policy, if there’s one
A look at the US’s recognition of the Tibetan government-in-exile makes one question why India does not build a more formal and meaningful relationship with the Land of Snows, especially given how the two share a significant cultural, religious and sentimental bond.
On 20 November, the Central Tibetan Administration (CTA) proudly announced that its Sikyong (president), Lobsang Sangay, had entered the White House. Dharamsala called it “a historic feat”, the first time that the CTA head was invited into the White House. In November, Sangay had already been invited to the State Department to meet Robert Destro, the Special Coordinator for Tibetan Issues. The fact that the building was not the White House, but the Eisenhower Executive Building next door is just a detail.
The Tibetan government-in-exile, which has so far not been recognised by any country, was often in the past denied entry to the US Administration buildings. “The logic for both denials was that the US government does not recognise the Tibetan government-in-exile. Today’s visit amounts to an acknowledgement of both the democratic system of the CTA and its political head,” said a CTA press release.
Whether it amounts to a virtual recognition of the Tibetan government or not can be argued. It is, however, certain that the outgoing US President, who will soon leave his job (and his house), is keen to put his successor in front of as many fait-accomplis as possible.
Whether the visit ‘next-door’ is a positive development for Tibet or not, only the future will tell. However, one wishes that the South Block would start meeting regularly with the Dalai Lama and the CTA officials. It would certainly be far more meaningful for the future of Tibet (even if Dharamsala does not realise this). Why was the visit of Foreign Secretary Harsh Vardhan Shringla to Dharamsala in July kept hush-hush and local journalists asked to not publish any photos? Why so much unnecessary discretion?
Interestingly, a few days before Sangay’s visit to the White House, the US House of Representatives passed a resolution (H. Res. 697): “Affirming the significance of the advocacy for genuine autonomy for Tibetans in the People’s Republic of China and the work His Holiness the 14th Dalai Lama has done to promote global peace, harmony, and understanding.” Among other things, the Resolution said that “it would be beneficial to convene a bipartisan, bicameral forum… between Members of Congress and His Holiness the Dalai Lama to discuss peaceful solutions to international conflicts”. On 18 November, during the debate, Representative Ted Yoho also strongly criticised Beijing for violating the Tibetans’ religious freedom: “the CCP sees Tibet culture and religious heritage as a threat to its control”.
Some parts of the US legislation should trigger a re-thinking of India’s Tibet policy (not sure if Delhi has one!). Take the example of the US Statement of Policy on Reincarnation of Dalai Lama: “The wishes of the 14th Dalai Lama, including any written instructions, should play a determinative role in the selection, education, and veneration of a future 15th Dalai Lama.” Why can’t South Block simply state that it will support all the decisions taken by the Dalai Lama in the matter of his reincarnation and will welcome the 15th Dalai Lama as an honoured guest of India, like the present pontiff has been since 1959. It is not necessary to go into details like the US Resolution does.
Then, regarding the preservation of the Tibetan plateau’s environment and water resources, the US bill “recognises the key role of Tibetan plateau as it contains glaciers, rivers, grasslands, and other geographical and ecological features that are crucial for supporting vegetation growth and biodiversity, regulating water flow and supply for an estimated 1.8 billion people.” America is far away, but it is India which will suffer the brunt of the climate change on the Third Pole and the intensive damming on the Roof of the World. It is a great pity that Delhi keeps mum on the subject.
The US appointment of a Special Coordinator for Tibetan Issues is worth thinking about for India, though the post should be more holistic in its definition and the officer should be able to deal with not only the Ministry of External Affairs, but also the Ministries of Home Affairs, Culture, Education or Defence in order to coordinate a new Tibetan policy.
Section 618 of the US legislation speaks of ‘Diplomatic representation relating to Tibet’: “The Secretary [of State] should seek to establish a United States consulate in Lhasa, Tibet”. The rationale is given: “(1) to provide consular services to United States citizens traveling in Tibet; and (2) to monitor political, economic, and cultural developments in Tibet.” It is crucial for India to have a similar policy.
In 1947, India inherited from the British a full-fledged mission in Lhasa. An ICS officer, Hugh Richardson, served as the first head of the Indian mission, but was replaced in August 1950 by a bright young Chinese-speaking IFS officer, Sumul Sinha. Unfortunately (and unwisely), the Prime Minister discreetly downgraded the Mission into a Consulate General in 1952. Thereafter, it remained so till December 1962, when, for unknown reasons, South Block decided to close it down. I have spent several years trying to find out why it was closed, but I have no answer till date. Maybe foolishness and panic were the causes for it.
The fact that the Ministry of External Affairs keeps the history of the crucial two years before the Sino-Indian conflict inaccessible to the Indian public does not help understand what really happened in the months preceding October 1962. For example, who in India knows that the Indian Consul General in Lhasa was practically kept under house-arrest for thirteen months before and during the border war and that there was no retaliation or even complaint from the Government of India? Another example is how the last Indian Consul could not even visit the Potala during his tenure in Lhasa. The reasons mentioned by Dr P.K. Banerjee—that the Chinese Consulates in Mumbai and Kolkata were causing problems—can’t be taken seriously.
The presence of an Indian Consul General in Lhasa could have helped to accelerate the process of the repatriation of the nearly 4,000 Indian PoWs, or, at least, put some pressure on the Chinese Government to release them. But was Delhi even interested?
Decades later, India tried to reopen the Lhasa Consulate, but in vain. In the 2000s, Shivshankar Menon, who served as Ambassador in Beijing and Foreign Secretary, is said to have played a pivotal role in this effort, but it is obvious that it was easier to hurriedly close the mission in December 1962, than to reopen it. Incidentally, Nepal still has a representative in Lhasa today.
Without copying the US, this is something that Delhi should insist on. It is India’s legitimate right due its old cultural, religious, sentimental affinity with the Land of Snows.
The writer is a French-born author, journalist, historian, Tibetologist and China expert. The views expressed are personal.
The Tibetan government-in-exile, which has so far not been recognised by any country, was often in the past denied entry to the US Administration buildings. ‘The logic for both denials was that the US government does not recognise the Tibetan government-in-exile. Today’s visit amounts to an acknowledgement of both the democratic system of the CTA and its political head,’ said a CTA press release.
Long-term battle of arbitral awards with reference to the Vodafone case
The American Constitution constitutes a similar provision prohibiting ex-post-facto laws both by Central and state legislatures. It’s been more than 70 years since India became a democracy, still there is debate regarding the retrospective legislation in taxation laws.
The art of taxation consists of so plucking the goose to obtain the largest amount of feathers with the smallest amount of hissing.
—Jean Baptiste Colbert
In India, arbitration is always criticised due to Court interferences. However, recent judicial decisions show that Indian Courts are adopting a minimal interference model. This would help India globally to make a mark in the field of arbitration. In this never-ending process of court trials, challenging the awards in tribunals is a trend now here we can take the example of the same from the landmark case of Vodafone International Holdings B.V. v. Union of India & Anr. The enforcement of foreign awards is always being hard in India due to the regressive approach of the judiciary, which can be seen in judgments like NAFED v. Alimenta S.A. and Venture Global Eng. L.L.C. v. Tech Mahindra. These judgments are undoubtedly acting as a huge stumbling block in the enforcement of foreign awards.
VODAFONE JUDGMENT AT GLANCE
In the landmark judgment of Vodafone, where the Indian income tax authorities passed an order for payment of $2.2 billion by claiming that this is a case of transferring the Indian assets and therefore, such transfer was taxable in India. But later the Supreme Court held that this is not covered within the meaning of Section 2(14) of the Income Tax Act, 1961 and quashed the demand of INR 120 billion by way of capital gains tax and also directed a refund of INR 25 billion just after that Income Tax Act (2012 Amendment) was brought in introducing two explanations in Section 9(1)(i) of the Income Tax Act, 1961 in this way virtually amending the law to ensure that cross-border transactions such as the $11.08 billion Vodafone-Hutchison deal are taxable. This amendment was challenged in the Permanent Court of Arbitration at Hague under India – Netherlands Bilateral Investment Treaty.
This retrospective amendment was widely criticized across the globe and made India an unpopular destination for investments. The Permanent Court of Arbitration (PCA) quashed the income tax department’s demand on the ground of violation of the fair and equitable treatment standard. It is also observed that India violated the bilateral investment treaty with the Netherlands by retrospectively amending the law and directed India to reimburse legal costs of approximately INR 850 million to Vodafone. The Vodafone award stimulates critical issues for foreign investors investing in India. This award negates India’s position on investment treaties that tax disputes do not come under the ambit of investment treaties. The discrepancy arises from the Vodafone case in which the Solicitor General of India has recommended the government of India to challenge the arbitral award and declared parliamentary legislation of a competent Parliament of a sovereign nation to be non-est and unenforceable. On the contrary, the Attorney General clearly expressed his inability to be involved in the case and he is in favour of accepting all well-reasoned awards instead of challenging every award.
The Indian Government has not decided their move yet but as each coin has two sides so each direction towards challenging the award will lead to the question of law regarding the power of the arbitration tribunal to declare parliamentary legislation to be non-est and unenforceable. India has sovereign powers to amend its laws with a prospective effect and in the present case; the transaction was between two non-resident entities through a contract executed outside India which has no nexus with the underlying assets in India.
JUDICIAL & LEGAL DICTUM IN THIS REGARD
The Indian legislature has the power to make prospective laws, but Article 20 of The Indian Constitution, 1950 provides certain parameters for the same. Article 20(1) imposes a limitation on the law-making power of the legislature regarding retrospective criminal liability. There is anarchy in the imposition of retrospective civil liability too.
As article 20(1) of the Indian Constitution provides that;
“no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.”
The American Constitution also constitutes a similar provision prohibiting ex-post-facto laws both by Central and State Legislatures. It’s been more than 70 years since India became a democracy still there is debate regarding the retrospective legislation in taxation laws.
India has a long term judicial approach regarding retrospective legislation and the landmark case is CIT v. Vatika Township Private Limited, in this case, the Constitutional Bench of Apex Court provided clarity on prospective versus retrospective operation of tax amendments. Moreover, a piece of legislation is presumed not to be intended to have a retrospective operation here the ratio is that the current laws should govern current activities (Principle of lex prospicit non respicit: The Law looks forward and not backward). This case also considered the principle of fairness and leads to the principle of lex non-cogit ad impossibilia – the law does not compel a man to perform what he cannot possibly perform. The ruling concluded that in determining whether a provision is applicable prospectively or retrospectively, attention would be required to be paid to the language of the amending statute, the legislature’s intent, the memorandum to the relevant Finance Act, and the hardship the amendment would cause to the taxpayer. Similarly in the case of CIT v. NGC Networks (India) Pvt. Ltd. held that in the case of retrospective amendment the payer could not have contemplated TDS. Along with that regarding enforcement of arbitral awards, in the case of Govt. of India v. Vedanta Ltd, the court held that-
“enforcement might be rejected just on the off chance that it disregards the State’s most essential thoughts of profound quality and equity, which has been deciphered to imply that, there ought to be incredibly faltering in the declining requirement, except if it is gotten through dishonour or fraud, or unjustifiable methods”
By way of this judgment, the Court reduces the decline of enforcement of foreign arbitral awards and minimizes judicial intervention. The court also observes that the government must change its approach regarding challenging every arbitral award and should adopt an approach that encourages foreign companies to invest in India. It will help India in achieving status as a global arbitration hub.
WAY FORWARD TOWARD ARBITRATION
Today tax uncertainty is a growing cause of concern for foreign investors. Now India is facing criticism owing to the Vodafone award, the question arises whether India would lead to ensuring tax certainty and a stable environment to boost investment hand in hand or not. The scope of investment treaty arbitrations is very bleak and now we have two directions firstly that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations, Secondly the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal. Bilateral Investment Treaties have a positive role in promoting foreign investment and Investor-State dispute settlement provisions are important factors too in contributing to foreign investment inflows. India is planning a new law to safeguard foreign investment. It also helps us to speed up dispute resolution and to boost stuttering domestic growth.
The scope of investment treaty arbitrations is very bleak and now we have two directions: First, that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations; Second, the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal.
The centre must address Punjab farmers’ concerns
The agitating Punjab farmers have lifted the rail blockade following the intervention of Chief Minister Amarinder Singh, who was able to convince them that their action had resulted in immense financial loss to the state as well as contributed to the hardships faced by common citizens. The imbroglio was broken when the Chief Minister spoke to the kisan leaders who wanted the Centre to have a re-look at the farm laws that were enacted in a tearing hurry during the last Parliament session. In fact, if the Union government steps in and gives the required assurances to the farmers, the increasing unrest can be contained on time.
Amarinder Singh has, in the meantime, urged the Centre to restore all Punjab-bound trains to placate the people and create an atmosphere where some kind of rational dialogue can be initiated. The passage of the Bills by both Houses of Parliament and the subsequent ascent granted by the President, have not gone down well with the farming community, which feels that there should have been wide consultations, prior to such a step being taken. The Centre’s reluctance to review the decision led to the resignation of Harsimrat Kaur Badal from the Cabinet, and also the withdrawal of support by one of the BJP’s oldest allies, the Shiromani Akali Dal.
It is evident that those who advised the government on the laws were themselves not acquainted with the ground level situation in Punjab, Haryana and western Uttar Pradesh, where the process of procurement is in variance with many other states. It is well known that each state has its own peculiarities, and thus care should have been taken while drafting the Bills. This kind of uncalled confrontation could have been avoided, had the farmers been brought on board, instead of ill-informed bureaucrats calling the shots.
Punjab is a very important state in multiple ways. It shares its borders with Pakistan and has borne the brunt of all India-Pakistan conflicts that have taken place there. Thus, it is paramount that an explosive situation should not be allowed to develop there, which would enable our enemy nation to exploit the discord. It is common knowledge that attempts by mischievous elements from across the border are constantly being made to send in narcotics, arms and other contraband through drones. The rise in the consumption of drugs has impacted an entire generation, and one of the reasons for the Akalis losing power in 2017 was because in the perception of the electorate, they did not do enough to contain this malaise.
The insistence of the Central government to stick to its position would therefore be a folly, which would not be in the national interest. There is a strong feeling in the state that politics was being played unnecessarily, and the BJP was wanting to divide the rural and urban areas of the state. This impression should be erased at the earliest. In a policy where the nation comes first, the Centre must find a way to address the problem. The issue has benefitted Captain Amarinder Singh immensely who, with his deft handling of the matter, has grown in political stature. He could easily facilitate a meaningful conversation between the Centre’s emissaries and the farmers. This face-off is uncalled for and must end at the earliest. The Centre would earn tremendous goodwill if it accommodates the issues raised by the farmers.
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