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Policy & Politics

Over-reach?

Excerpts from Anil Swarup’s book Ethical Dilemmas of a Civil Servant.

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Kalyan Singh served as the Chief Minister of Uttar Pradesh from 24 June 1991 to 6 December 1992.

Whether it was appropriate onmy part to give advice on an issuethat was political in nature? And, whether I should have given any advice when it was not sought? — Anil Swaroop

The 1991 General Elections saw Bharatiya Janata Party secure an absolute majority. And soon I read in the newspapers that I had been appointed as Director, Information and Public Relations, Government of Uttar Pradesh, from my previous assignment as District Magistrate, Lakhimpur Kheri. My first reaction was that the newly elected BJP MP who was having trouble with me had got me shifted out.

However, with a number of congratulatory messages pouring in I soon discovered that the new position was considered to be more ‘important’. It did turn out to be an extremely sensitive position where I was to report directly to the Chief Minister (CM). Over a period of time, this provided me an opportunity to work very closely with Kalyan Singh, the Chief Minister of Uttar Pradesh.

Anyways, just a few days into my ‘new’ job I found myself at the CM’s residence briefing him about media coverage. The Chief Secretary and the Director-General of Police (DGP) were already there. An important discussion was underway regarding the Etawah by-election. The election to this constituency had been countermanded on account of mass rigging, thus necessitating the by-election.

The Chief Minister looked visibly irritated at the number of election meetings that were scheduled for the day. He was scheduled to address as many as seven rallies in the next couple of days. He was reluctant to address all the seven rallies and made no bones about it. The Chief Secretary and the DGP were not only sympathetic observing the plight of the Chief Minister, they were also nodding their heads in agreement with the views of the CM.

The CM asked his personal staff to connect him to the party office to cancel the last two rallies. I had a different point of view on the issue, though it was purely a political call. And this was at variance with what the CM had in mind. After debating mentally for a few seconds, I spoke out and gave my unsolicited advice, “Sir, I was recently District Magistrate at Lakhimpur Kheri. A lot of anticipation is associated with the visit of the Chief Minister. Hence, my suggestion is that even if it is for a couple of minutes, you may consider going there and not cancel the rallies. Cancelling the visit may not convey the right message”.

The CM, not expecting such advice, gave me an angry look and questioned, “How do you expect me to address so many rallies in a day?” Even before this cryptic question concluded, the Chief Secretary started nudging me to keep quiet. I didn’t though and carried on, “Sir, my job is to give my opinion. The final call is yours.” There was pin-drop silence for a few seconds but the nudging by the Chief Secretary continued, with greater vigour. After a pregnant pause, the Chief Minister commented, “Anil Ji, I think you are right. I should address all the rallies”. The nudging by the Chief Secretary stopped forthwith. He did a volte-face and started nodding vigorously, once again agreeing with the Chief Minister, “Yes Sir, Anil is right.”

I had forgotten this incident. It was Kalyan Singh who recalled it much later when he became Chief Minister for the second time. He was expecting me to call on him when he took the oath of office, but I was happy where I was. He then summoned me and asked me to join his Secretariat, now as Secretary. I took up the assignment but didn’t stay for long as I was picked up by the central government.

When I went to bid him adieu, he narrated this incident to me to explain why he wanted me to be a part of his Secretariat. He wanted a critic around him who could speak his mind out without bothering about the views that the Chief Minister held. However, I wondered whether it was appropriate on my part to give advice on an issue that was political in nature? And, whether I should have given any advice when it was not sought?

 The whole episode also made me wonder whether it was ethical on the part of senior civil servants to necessarily concur with the decision-maker?

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Policy & Politics

Cross-border data transfers: (In)Adequate protection?

Rahul Chaudhary, Jayashree Parihar & Aastha Saxena

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“Data is the New Oil, the New Gold”. If there is one thing which unites businesses all over the world, it is, above all else, their collection, use, processing or storage of personal/financial data of clients, consumers, service providers and business associates.

 Across the nations , data protection laws have changed remarkably over the past two decades. Now more than ever, an individual’s digital existence is a common phenomenon. Our reliance on smartphones, laptops and wearable technology has increased manifold and payment through online digital modes, is a way of life. At an individual level, there is a huge amount of personal data that is being shared, collected, and stored online on the pretext of making our online existence customized and therefore, comfortable. Due to this boom in digital space and economy, one of the most frequent concerns to arise is regarding the ‘adequacy’ of protection of our personal data.

Generally speaking, personal data is any data or set of data which can be used to identify a person directly or indirectly. This would include one’s name, characteristics, personality traits, appearance etc. which may not necessarily be closely guarded. However, certain other types of data, such as those relating to one’s religious or political belief, health, or private life would be closely guarded as their dissemination, or knowledge could have significant impact on a person or may be treated with greater care simply by virtue of their sensitive nature. With varying legal systems and societal standards, all jurisdictions have their own definition of what type of data should be categorised as ‘Sensitive Personal Data’ or be put in a special category of personal data (‘SPD’) requiring a relatively higher level of regulation or protection.

In the digital economy space businesses are global, requiring cross-border transfer of personal data. It is imperative that each business must understand the common basic principles pertaining to data protection and privacy laws regulating the legal environment of the jurisdictions within which such business operates or transacts. At a high level, jurisdictions having dedicated data protection law usually permit crossborder transfer of personal data on five broad principles – adequacy, informed consent, contractual necessity, interests of data subjects or other persons, and overriding legal or state functions.

The principle of adequacy requires that data can be transferred across national borders only if the receiving nation or territory offers sufficient protection for data under its own laws, which is comparable to or, at the very least complies with the minimum protection accorded in the transferor state.

The last few weeks have been particularly busy for the data protection activists and businesses alike, as both find themselves grappling with the issues resurrected by the ruling of the Court of Justice of European Union (‘CJEU’), European Union’s highest court, in the much-awaited case of Data Protection Commissioner v. Facebook Ireland Limited, Maximillian Schrems (usually known as the ‘Schrems II’) wherein the legal basis of international transfer and processing of personal data between the EU and the United States of America (‘USA’) was tested for the second time.

European privacy laws [previously the Data Protection Directive – Directive 95/46/EC (‘Directive’), and now the General Data Protection Regulation (‘GDPR’)] permit free flow of personal data within the EU. Cross-border transfer of personal data to non-EU country is also permitted provided the personal data enjoys ‘adequate’ level of protection in such country which is essentially ‘equivalent’ to that within the EU. USA came up with a set of guidelines or principles to be followed by businesses receiving data from EU known as the EU-US Safe Harbour framework (‘Safe Harbour framework’). Vide order dated July 26, 2000, the European Commission accepted the adequacy of Safe Harbour framework. This resulted in free flow of personal data from EU to USA provided the entity receiving the personal data was compliant with the privacy principles contained in Safe Harbour framework.

 In 2013, Edward Snowden publicly disclosed that intelligence agencies in USA have wide access to the personal data of EU users being collected by the electronic communication/service providers in USA. Following these revelations regarding the invasive surveillance mechanisms employed by authorities in USA, questions were raised about the integrity of the Safe Harbour framework and the adequacy of protection provided by it.

In the year 2015 an Austrian national, ‘Maximillian Schrems’ approached the Irish Data Protection Commissioner (‘DPC’) claiming that the Safe Harbour framework did not guarantee the requisite level of data protection mandated under the Data Protection Directive, the EU’s data protection law in force at the time, and thus, data collected by Facebook Ireland Limited from EU residents must not be transferred to servers of Facebook Inc. in USA, as it violated the guaranteed rights of EU residents. The DPC ruled that it was bound by the Order dated July 26, 2000 passed by the European Commissioner; the Safe Harbour framework provided adequate protection; and, rejected the complaint as “frivolous and vexatious”. The matter travelled up to the CJEU which gave its decision in this case of Maximillian Schrems v. Data Protection Commissioner, which came to famously be known as the ‘Schrems I’ case, in the year 2015. The CJEU also observed that “legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life” as guaranteed under the Charter of Fundamental Rights of the European Union (‘CFR’). The CJEU held that a third country such as the USA must provide an “essentially equivalent” level of protection, that the decision of the DPC was invalid and that the protection pursuant to the Safe Harbour framework was inadequate.

Soon thereafter, USA negotiated with EU to come up with another framework referred to as the EU-US Privacy Shield framework (‘Privacy Shield’) for providing adequate protection to data so that the companies in the USA can resume engaging in crossborder transfer of data on a self-certification basis. European Commission’s Decision 2016/1250/EC of July 12, 2016 approved the Privacy Shield as providing ‘adequate’/’equivalent’ protection.

Since the Privacy Shield had failed to address the core issues pertaining to conflict of laws in USA with the fundamental right to respect for private life as guaranteed under the CFR of EU, the issue related to adequacy of protection granted by the Privacy Shield again travelled to the CJEU on account of a lawsuit filed by Irish DPC against Facebook Ireland Limited and Maximillian Schrems. However, this time, the touchstone to judge the adequacy of the data protection was GDPR which replaced and repealed the Directive in the year 2018. On July 16, 2020, the CJEU issued a judgment declaring invalid the European Commission’s Decision of July 12, 2016 on the adequacy of the Privacy Shield. The CJEU, amongst other things, declared the Privacy Shield as an invalid mechanism for transferring personal data, due to the limitations on its protection from the domestic law of USA which allow indiscriminate access to public authorities in USA to the EU data transferred there. It observed that though the Commission had held in its adequacy ruling that the authorities in USA would be bound by the limitation principles under the EU law, the laws of USA do not “grant data subjects actionable rights before the courts against the US authorities. Therefore, the Privacy Shield cannot ensure a level of protection essentially equivalent to that arising from the Charter contrary to the requirement in Article 45(2)(a) of the GDPR that a finding of equivalence depends, inter alia, on whether data subjects whose personal data are being transferred to the third country in question have effective and enforceable rights.” The CJEU thereby declared that the Privacy Shield cannot be used as the legal basis for transferring personal data to USA where the recipient is subject to parting with such data as per its surveillance laws.

Back at home, the Supreme Court of India in the year 2018 had also given a ruling recognising the need to bridle the powers of the government while handling data of its citizens. It was noted that “informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well.” To guard against such dangers, the Court recognised that “a careful and sensitive balance between individual interests and legitimate concerns of the state” needs to be achieved. In the past couple of months, lack of adequate protection has also been a growing concern. The Indian Government’s recent ban on several Chinese applications including TikTok, UC Browser and BeautyPlus was also due to breach of users’ data privacy. India under its current laws in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 also recognises the requirement of adequate protection for cross-border transfer of SPD.

Should adequacy be lacking in laws, states such as Russia, Switzerland and those following the GDPR permit cross-border transfers provided treaties or data sharing frameworks have been established for it. It was under this route that the Privacy Shield was set up to allow EU companies to transact with businesses in USA. Even if there is no data sharing framework in place, entities intending to transfer the data can opt to be contractually bound by the model clauses or Standard Contractual Clauses (‘SCC’) approved by the transferor nation’s data authorities. Even otherwise, parties can themselves provide contractual obligations respecting the higher protection standards. However, some jurisdictions such as Switzerland, would require prior approval of the data protection authorities if the SCCs terms are deviated from. The consequences of the CJEU judgment in Schrems II is that the businesses are now forced to rely on SCCs to legally support cross-border transfer of personal data from EU to USA. Contractual safeguards may even be put in place by way of binding corporate policies. The law proposed to be enforced soon in India i.e. the Personal Data Protection Bill, 2019 (‘Proposed Bill’) also envisages alternative mechanisms to facilitate cross-border transfer of data.

Even in case of glaring conflicts or inadequacy, all is not lost in the world of data transfer. In such situations, cross-border transfer can take place if the data subject or data principal, i.e. the person to whom this personal data relates, consents to transferring such data despite being apprised of the risks associated with such inadequacy. What assumes importance then is the quality of consent and the riders attached to it, which vary from jurisdiction to jurisdiction. For instance, EU, UK, Mauritius and Switzerland would require that consent should be given after informing the data subject about associated risks and giving the option to refuse such consent. In fact, in Vietnam, financial data is considered as SPD and therefore, the e-commerce websites must seek purpose-specific informed consent before using or disclosing such data. On the other hand, as per Australian law, since financial data is not strictly included in SPD, it could even be disclosed based on an implied consent understood to have been given by the data subject. However, most recently enacted data protection laws do not consider a ‘consent by default’ sufficient for this purpose. The practicality of this is to give the data subject an opportunity to make a conscious decision for herself, being insulated from the self-interest of the data controller/transferor to export data, whether for ease of business or earning profits.

Where transfer is necessary for purpose of contractual or pre-contractual obligations, the same may be transferred in the absence of specific informed consent for cross-border transfer by the data subject. However, the requisite parties to the contract eligible to transfer data in this manner also vary under different laws. In countries such as Brazil, Mauritius and Russia, so long as it is in the best interest of the data subject, even contracts entered into by the data collector/transferor with other third parties to the exclusion of but for benefit of the data subject would be valid ground for availing leeway under this basis. Whereas in Switzerland, for intra-group cross-border transfer in case of inadequacy, data subject should be a party to the contract.

The next basis for international transfer is vital or compelling interest. This means that cross-border transfer may be permitted on the grounds of vital interest of data subject, or on account of compelling legitimate interests of the data controller and/or processor, and in some cases, a third party. Different legislative frameworks have different standards for exercising this basis for cross-border transfer. In some jurisdictions, such as Germany, Russia and Luxembourg, such a ground of data subject’s interest would be permitted only where data subject is not in a position to give an informed consent. Interestingly, Mauritian authorities can even call upon the data exporter to demonstrate that compelling legitimate interests did in fact exist. Further, under the GDPR and Mauritian law, data from publicly accessible records can be shared, in compliance with other conditions of the data protection law or where the requesting third party, can demonstrate a legitimate interest where access is regulated. It is likely that issues relating to demonstrability and compelling nature of such interest, being subjective elements, would require frequent intervention of data protection authorities and courts.

 The ground of necessity for legal or state related functions for data transfer is, perhaps, a ground as widely observed as that of consent. Laws of almost all nations recognise that data to at least a limited extent could be transferred even without strictly complying with otherwise applicable law where disclosure is necessitated by reasons of national security or defence, public interest, protection of life or health, complying with court procedure or establishing or enforcing legal rights. It must be appreciated that it is not only in case of national or international exigencies that cross-border flow of data occurs. In the present day and age where international cooperation has expanded in all spheres, be it to improve global health, fight terrorism or to catch economic offenders, countries are likely to share data proactively to achieve their goals. Such cooperation amongst countries has been seen in the past when Herve Falciani in 2008 fled to France with data of account holders who were hiding money from taxmen in the Swiss branch of the Hongkong and Shanghai Banking Corporation (H.S.B.C.) Bank, and details of those individuals were shared with India by the French authorities in 2011 and later, the Swiss authorities in 2019. Being bound by their respective national laws to some extent, even the authorities would be expected to exercise a degree of caution while disclosing such data.

The protection of personal data in cross-border transfers has gained enormous importance in recent times and would continue to be of vital interest to the businesses in times to come given the fact that data flows are bound to grow with more and more businesses going digital. Judgments of CJEU in Schrems I and Schrems II has served notice to businesses and nations alike that the right to privacy must be upheld and respected.

 India has proposed a new law for protection of personal data. In fact, the Indian Government is also considering regulating the processing and transfer of non-personal data to promote a healthy business environment. Earlier this year, the Indonesian President is reported to have signed a draft law on personal data protection, which leans towards the Indian Proposed Bill and defines general personal data and SPD in a similar fashion. Unlike the GDPR, the Indonesian bill includes personal financial data as a part of SPD and for cross-border transfer of personal data and adopts the mechanism of ‘adequacy’ of protection in the recipient states. Countries like China, Indonesia and Russia, that once banned cross-border data transfers, are now conscious of the need to open up the digital boundaries and harmonize themselves with the global pulse of data protection. Where Switzerland had a more stringent regulation in place, in light of its close geographical and economic ties with the EU, perhaps, it realized the need to introduce leniency and streamline its laws with that of its neighbours.

 However, a view may be taken that it is not sufficient for countries to merely align their data protection policies. As seen above, a state of real adequacy of protection cannot be attained unless national laws overriding data protection laws are also brought in sync with one another. In absence of coming up with robust crossborder data transfer mechanisms, nations and entities might soon realise that the principle of adequacy is turning into an unforeseen trade barrier. Since international harmonization across legal issues seem more like a utopian vision than a soon to be achieved reality, data importers and exporters would have to make up for the disconnect on their own, to whatever extent it is possible. Depending on a case to case basis, one approach could be to transfer data not only on one of the many aforementioned legal bases but rather to use a combination thereof so that even if one of the basis is held to be invalid, like the Privacy Shield in Schrems II, business is not thrown in a state of absolute frenzy and rather already has provisions for enabling stop-gap arrangements to be put in place.

 While countries can take time to decide whether or not to review their respective legislations, the business entities are forced to amend their policies and contracts to protect their businesses so that they earn ‘adequate’ profits while arranging to provide for ‘equivalent’ protection for cross-border flow personal data.

Adv. Rahul Chaudhary is Partner, PSL Advocates & Solicitors. Adv. Jayashree Parihar is Senior Associate & Adv. Aastha Saxena is Associate, PSL Advocates & Solicitors.

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Policy & Politics

The encounter of gangster Vikas Dubey: Society, policy, politics and law

Pareekshit Bishnoi

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The administration of justice is one of the most essential function of the State for a due safeguard of the rights and lives of its people. The key functionaries in this system are police, prosecution, defense counsels, and courts and corrections. Each of these functionaries has defined powers and functions and is subject to specific rules and procedures. This brings reasonability and accountability in their functioning which ultimately solidifies a justice system of a country.

Talking of the police, the preamble of the Indian Police Act, 1861 describes police as an “efficient instrument for the prevention and detection of crime”. However, the recent incident relating to the encounter of accused Vikas Dubey at least at present appears neither prevention nor detection. The name assumingly needs no introduction in light of recent events. Vikas Dubey was accused in 64 cases including those of murder, abduction, extortion. The recent most being Kanpur Cops Killing case wherein 8 Uttar Pradesh police officials were killed when the police went to arrest him. After absconding the place of crime amongst others, on 09.07.2020, he was arrested from Kal Bhairav Temple in Ujjain wherein he surrendered to the police.

The apprehension of an encounter of this main accused was in the air since his run after the incident. His act of surrendering in the temple was thought as a smart and safe move to avert any possible encounter, including a fake encounter. However, an act which on 09.07.2020 appeared to avert encounter or fake encounter and assure safety to his life, turned enfeeble by the morning of 10.07.2020. He was encountered on the outskirt of city Kanpur while he was being brought to Kanpur from Ujjain. It is the case of the police that he was encountered when the vehicle in which he was being transmitted toppled and he “attempted to flee” after snatching a pistol from one of the police officials.

Presently, though the case of the police appears to be uncorroborated by the surrounding circumstances yet it would be not appropriate for the author to comment on the veracity of case of either side as an investigation by the Special Investigation Team is still ongoing.

However, it would be appropriate to point out several facts and issues likely to be involved and play a critical role in determining the veracity of the case of the police. Given the suspicious story and circumstances, on the factual front, an answer to several questions will play a very critical role in the determination of the truthfulness of the case of police. Some of these questions may be briefly noted as follows:

How many police officials accompanied the accused in the transit? How did the vehicle topple? What would the report of an expert say on the possibilities of the toppling of the vehicle? How many police officials were travelling along with him in the same vehicle? Did anyone sustain injuries from the toppling of the vehicle including Vikas Dubey? What does the medical report of each person say about the nature and cause of the injuries sustained? Has the weapon snatched by the accused been sealed? Does such weapon show fingerprints of Vikas Dubey on the pistol? Why was his leg not aimed in all four shots with which he was hit? Did the bullet enter his body from the back or chest? What does the site plan of the place of occurrence indicate? Has any bullet even been fired from the pistol snatched by the accused Vikas Dubey? If it was a fake encounter, why was the time of 7:00 in the morning chosen instead of any time at night? Is there any direct and independent witness to the incident? If no, what does the ratio of vehicles usually be on the said road? When was the transit of vehicles stopped on the road? When was the sound of fire heard? How did the misfortune and coincidence happen only with the accused and co-accused of this case and that too within such a short time, particularly when the apprehensions of the encounter were so high? Why was one of the houses of Vikas Dubey bulldozed when the investigation was still pending?

 In addition to them, questions will arise from the documents like site plan, medical reports and the witnesses produced will play a critical role in determining the veracity of the case presented by the police.

On the legal front, the question of why was no transit remand order taken from the Court in Ujjain has been raised. Though the explanation of the police for this would be a relevant fact but interestingly, obtaining of a transit remand has often been held as non-mandatory and mere irregularity. For example, the Jharkhand High Court in Ram Bilash Sahu vs. Union Of India [2012 SCC OnLine Jhar 932] observed that “non-compliance of provisions contained u/s 76 of the Code, in such circumstance can only be an irregularity which shall not be a ground to declare the remand illegal” (para. 13). Further, in Surendra Sardar vs. State of Bihar & Ors. [(2000 (3) PLJR 238] the Court observed as follows:

“It is not a condition precedent or a valid order of remand that the accused must at the time of remand, be in valid custody under a valid remand order. If on the date of hearing of the application the remand is valid, then no writ of habeas corpus can be issued only on the ground that at earlier point of time the remand was invalid.” (para. 6)

 Thus, in the present case, the non-taking of transfer remand may be considered as mere irregularity as had the accused been produced before the jurisdictional Court, his custody would have otherwise been treated as valid.

Having noted this, the author opines that the encounter which presently seems to have been staged could have been averted by due diligence of the jurisdictional Court, police official, and/or of any advocate. Taking of transit remand could have at least secured the transit of the accused from Ujjain to Kanpur. Moreover, the accused or any person on his behalf could have pleaded for the order of putting handcuffs and leg cuffs to the accused. This would have in the opinion of the author nullified the story of attempted escape by the accused. But it appears that the accused, the jurisdictional judge or any other advocate or official for that matter did not anticipate that the accused still has his life on risk once he was in police custody after a surrender.

However, in addition to the above-discussed factual and legal matrix, the series of incidents and the response of the police to the entire incident also posts some other questions and thoughts on the existing criminal justice system and political system of the country. First, whether the media and the police have different responsibilities towards society when eight police officials killed vis-àvis killing of any number of civilians of the country.

Second, the encounter at least at present appears to be an ecstatic and emotional response to the killing of their colleagues despite them, either under political pressure or otherwise, having let these people grow and perpetrate in this system to such an extent that some of their officials continuously conspired against the attempt of their colleagues to arrest the accused. The proverb, “as you show, so you shall reap” sadly appears to befit the situation except for the politicians if any were involved. However, the encounter, whether staged or inadvertent, cannot make the people turn a blind eye to this existing dysfunctionality in the police and political structure of the country.

 Last, and most importantly, the incidence of encounter particularly if assumed to be fake and staged mocks the functioning of the judicial system, dwindle the faith in the courts and “due procedure established by law”, and override “rule of law”. However, despite the issue of delay and pendency in courts, such encounters or at least encounters which could be averted cannot be justified.

The incident, on the one hand, gives a sense of inefficiencies in the Indian judicial system where a delay is a common phenomenon, on the other hand, it also shows the dysfunctionality of the police and political system. Such extra-judicial exercise of power in the hands of police posits a great threat. It may at present appear fascinating exercise of the police power but history shows that such an exercise of the power or any neglect or excuse thereof has often been misused and degraded justice mechanism of any country. While talking of separation of powers, Montesquieu in his book ‘The Spirit of Laws’ (1748) observed that if the executive power i.e. police and the judicial power are taken by a single hand, the executive acts would lose accountability and lead to arbitrariness. It is in light of this that it is incumbent on the Court to take a stern cognizance of the situation and circumstances and get the incident duly investigated. An overseeing of such an exercise of power would corrupt the justice mechanism in the long run.

 It is true that henceforward encounters of hardcore criminals by the police will not only be a norm and in vogue. But any light treatment of this incident would be a slow poison to the administration of the criminal justice system in India. Presently, the surrounding circumstances do suggest it to be a staged encounter and at least attack and question the efficiency of the existing criminal justice system in India. In closing, the author suggests that a strict recognition of the implementation of guidelines noted and framed by the Hon’ble Supreme Court in People’s Union for Civil Liberties & Anr. vs. State of Maharashtra & Ors. [(2014) 10 SCC 635] for encounters and investigation thereof should be put in place and acted upon including in the present appalling and suspected encounter of main accused Vikas Dubey.

Adv. Pareekshit Bishnoi practices at the Delhi High Court and district courts at Delhi.

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Policy & Politics

Making things happen: Treat states as partners

Anil Swaroop

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Sometimes we forget that India is a federal country. We also forget that Centre is a geographical fiction and all action is in the states. Failure of a number initiatives and schemes can be attributed to this “distance” that exists between the Centre and the States. Ironically, a number of officers that would have worked in their respective states (especially those belonging to the Indian Administrative Service) look at states with disdain and look down upon them. This becomes evident while discussing the implementation of schemes in various states. One of the major factor contributing to the success of schemes or initiatives has been on account of the partnership forged with the states.

There was a crisis in coal sector in 2014. This crisis was not account of alleged scams. These scams were a consequence of shortage of coal in a country. India boasts of 300 billion tonnes of coal reserve with a requirement of just 800 million tonnes per annum. Yet there was a crisis as the coal production did not meet the target and 25 percent of the coal was being imported. To make matters worse, the Supreme Court cancelled allocation of coal blocks to private entities that were contributing around 90 million tonnes per. The coal blocks had to be auctioned now and by the Central Government. It was indeed a difficult job as these coal blocks did not exist at the “centre” but in states, some of which were being ‘ruled’ by an ‘opposition’ government. National Democratic Alliance (NDA) had its government at the centre but states like West Bengal and Odissa were ruled by non-NDA parties. Hence a strategy was chalked to get the states on board. It worked because states were treated as partners and, instead riding a rough shod, a value proposition was conveyed. The states got convinced that the auction of coal blocks and the process defined for the purpose was in their interest. Such an approach is even more imperative now as almost all the coal bearing states (West Bengal, Jharkhand, Chattisgarh, Odissa and Maharashtra) are under non-NDA governments. Auction for commercial coal mining cannot succeed without taking these states on board.

In terms of coal production by Coal India Limited (CIL) that is still the primary contributor to coal production (80%), partnership with states is even more important. Coal production depends upon a number of factors but the most important amongst them are: a) Land acquisition b) Environment and forest clearance c) Evacuation of coal. The first two factors are totally dependent upon what happens in the states. The process of land acquisition is almost totally under the control of and influenced by state governments. For environment and forest clearances, the entire groundwork is done in the state. Hence, states have to be taken on board. During the years 2014-16, a well-defined strategy was worked out. Under this strategy, no meeting was held in Delhi to resolve issues that were local in nature. As Coal Secretary, I travelled to the states and held periodic discussions with the state level officers and District Collectors to expedite clearance. An effort was also made to convey a value proposition to the states regarding coal mining. It worked. Coal production increases by 34 million tonnes during 2014-15. This was more than the cumulative increase of four previous years. During the following year, 2015-16, the production rose by another 44 million tonnes. Coal shortages were a thing of the past as no power plant was critical on account of paucity of coal. We were even toying with the idea of exporting coal to Bangladesh. The states were happy because their power plants had surfeit of coal and they were getting larger amount in form of royalty on account of increased production.

Swachh Bharat Abhiyaan is another example where the approach of treating states as partners worked. The Central team travelled the length and breadth of the country. They were on a mission to engage with the stake holders and convey a value proposition to them. Going down to the villages enabled them to assess ground realities that constituted very useful input in formulating policies. This was a game changer. The intensity of engagement and the passion that went with it helped “buyin” from various stake holders. A “connect” was established with each stake holder, including the state governments.

Until 2014, approximately 60% of the world’s open defecators (600 million people) were practicing open defecation across in India. This changed significantly. Within a few years of the scheme, the open defecation number came down significantly and now rural India has actually become open defecation free. Perhaps it is the connect with the ground realities that made Swachh Bharat

What is sometime forgotten at the centre is that the states also have elected and responsible government and that the centre is not the sole repository of all wisdom. This attitude gets reflected in a number of policies (including the proposed Education Policies) are announced by the central government and the details are defined to an extent that leaves little flexibility with the states and the auditors have a field day. In as complex and varied country as India, only the broad national parameters need to be defined and sufficient flexibility needs to be given to the states, treating them as responsible partners. The details of each scheme and initiative will have to be worked out locally. This will impart a greater ownership amongst the states giving the schemes greater chance to succeed.

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.

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Policy & Politics

Political defection and intra-party democracy vs right to free speech to legislators in India: A matter of constitutional principles

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India is not only the world’s largest democracy but also the most dynamic and flourishing democracy in the world as of now. Various social and political changes have been taking place in the country and the pillars of governance have been increasingly becoming democratic in its functioning. The democratic principles and the Constitution are more or less followed by both, state and common man in pretentious terms. But if there is one institution, where there is complete lack of internal democracy and disregard to its individual constitution, it’s the political parties. The bizarre irony is that these parties are the institutions that play a major role in running the Indian democracy through their leaders and representatives by preaching democracy and its principles to the entire country. But sadly, when it comes to preach the same, they make a complete volteface. Forget about Indian Constitution’s principles, they end up defying their own constitution and its principles.

The leaders of the political parties are expected to promote and encourage debate, discussions, and dissents in the country as a means to propagate the essence of democracy and transparency. People are expected to voice their views without fear of intimidation and express dissent as and when they feel dissatisfied with the opinion of any individual or organisation. But political parties are miles away from this proposition and they tend to keep themselves away from all this quintessential part of democracy.

There are numerable instances through which it can be inferred that Indian political system suffers from the vice of lack of democracy and transparency in its functioning including defections, confining MLAs into hotels and resorts, election of party leadership and functioning of party. The best part in this is that all the political parties seems to be on the same page and no one out of them is different from others when it comes to these things. Well, this might sound little ironical about this political unity and comity, this is the truth.

Laws against Political defection and chilling effect on Free speech

Out of all such instances, political defection is the most pertinent example of something which undermines the democracy in India. It is something which is a very common phenomenon in the political system and a quarterly event which has almost become unavoidable in the contemporary and modern democracy in India. To combat this evil of defection, India was one of the first states to enact the law against defection, also known as anti-defection law. India regulates such defections through Articles 102 and 191 of the Constitution along with the Tenth Schedule of the Constitution of India which was inserted way back in 1985, as a means to disqualify members on certain grounds. The grounds which is little disturbing is that the legislators shall be disqualified from the house in case he/she defies the party whip on any issue.

Most of the advanced democracies have not enacted any law against defection and have given free space for dissent in the system. In UK and US, it’s a routine phenomenon that legislators often disagree with their own party and partymen, and defy their party whip when they don’t agree with the views of the party on certain issues. Infact, in UK, the members often lose their individual membership from the party, but not their membership from the parliament. In US, Congressmen are not defected when they vote against their own party on any issue of importance. Compared to this, the law in India against defection is very strict and even a miniscule of dissent against the party and its whips on any issue might attract disqualification from the house.

 In India, legislators are not free to express dissents against their own party and they have to mandatorily align themselves with the view of party and its leadership, thanks to anti-defection law. It’s very obvious that the legislator cannot agree with the party and its leadership on every issue and should have right to express dissent. Due to these obstacles, various legislators were not able to express their independent views in the past on CAA, NRC Article 370, and Triple Talaq in the past because any such defying act would lead to their disqualification from the house. Recently, a deputy Chief Minister of the State of Rajasthan and few other MLAs of a State in India were served with a disqualification notice for inner party dissent which was equally violation of freedom of speech. While anti-defection law promotes political stability one hand, on the flip side, it doesn’t promote transparency, accountability, and representative democracy in the party. We need to remember that the legislators have their first duty, loyalty, and responsibility not towards their party or the leadership but towards their individual constituency which elected them.

As already pointed above, debate and discussion should be profoundly promoted but such provisions clearly defeats the principles of democracy and free speech. Clearly, such things will help us in keeping a check on the government and party’s leadership. Here, we give more focus to central cabinet than the individual views. Such blanket provisions allows the defiance of principles of separation of powers wherein the legislators are bound to work on the direction of executive and can’t disagree with them. Amidst all this, the legislator does more damage to its constituency than anyone else. As if the legislature and executive didn’t deter much, the Supreme Court ruling made it more blatant that if you want to criticise own party’s decisions, you will have to lose your membership of the house since it calls for voluntary giving up membership of the house. Thus whole process of defection is a gaffe to the democracy and the whole contemplation process in our legislatures has been reduced to buffoonery.

Intra-Party democracy and Political parties

Intra-Party democracy tends to promote constitutionalism in the country and is essential for its survival because it affects the inherent quality of democracy in the country. In India, none of the political parties, be it national or regional, follow their individual constitution. There is no intra-party democracy within the political parties and almost all the parties are autocratic in their functioning. There are various measures to check this assertion like election of party’s head, election of candidates for state or national elections, and funding of the parties. Amongst all the parties, none of the parties seems to follow a democratic approach while appointing their head, selecting candidates for the elections, or funding the election rallies.

One of the major reasons for such existing mechanism in the country is that India’s political parties are more leader centric rather than centralised leadership. Due to this, most of the leaders are unwilling to channelize the whole procedure for selection of their party’s candidates. Almost every party seems to be perpetuating dynasty politics in India, ignoring a proper channelized method of system and election. There is complete lack of transparency to this and everything happens through an entirely undemocratic process.

How do we expect these parties’ leaders to promote democracy in the country when they themselves are not able to portray the same within the parties? How far we will be controlling the state politics through New Delhi or national leadership? When will we promote federal politics in the country? Probably, we can learn from Germany which has achieved a remarkable feat in ensuring intra-party democracy and transparency in party funding and internal elections.

 Some efforts had been made by some people to combat this deficiency of anti defection law and promote intra party democracy, but all those efforts had been in vain. It is pertinent to note that in the past, a private member bill was moved by an legislator Mr. Manish Tewari to amend the anti defection law with a view to promote healthy discussions and free speech of legislators. But sadly, it couldn’t attain any finality. A PIL was filed in High Court of Delhi seeking directions from the court to Election Commission to formulate guidelines to regulate parties and bring intra-party democracy which was ultimately rejected. Top leaders from the two major national parties of the country including the incumbent Prime Minister have even expressed their concerns regarding the intra party democracy in the country. Despite all this efforts and concerns, no efforts have been taken by either organs of the democracy to promote free speech of parliamentarian and intra party democracy.

Recently, a petition was filed in the Rajasthan High Court by Sachin Pilot and other MLAs challenging the legality of the show cause notice by the Speaker served to them for not attending the party meeting and expressing dissent to the state leadership wherein they also challenged the constitutionality of Paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India. While ordering the status quo to be maintained on the showcause notices issued by the speaker, the Court framed 13 question of law but didn’t order anything on merits. While this has been challenged in the Supreme Court, it would be interesting to observe the outcome of this petition considering the fact that this would be the first case of its kind where the Court would be deciding the defection on the issue of intra party dissent and not crossing over per se. No Court has ever decided the defection on the issue of intra party dissent. Another question which ought to be decided would be regarding the ambit of party whip. Whether the whip applies only when the house is in session or does it apply to the legislator outside the house as well including internal party meetings?

Conclusion

 A Change is important because unless we democratised our political parties, we can’t really democratise the Indian parliamentary system. To promote the political stability and protect independence of legislators concurrently, it would be better if the current defection law is changed a bit. Possibly, the word term any issue should be removed and disqualification of members should not happen when they are willing to express their dissent against arbitrary law or policies which is being propagated by their party. The legislators should be allowed to exercise their right to freedom of speech and expression, as guaranteed under Article 19 (1)(a) of the Constitution. The legislators should be allowed to voice a difference of opinion outside the legislative assembly and it shouldn’t attract anti defection law. It should rather only happen if they are found defying the party’s leadership on few issues like money bills and no-confidence motions. Further, the member who has resigned shouldn’t be allowed to contest the by-election that happens soon after his resignation. Rather, he should be only allowed after the end of the term of the Assembly. In addition to this, it is high time that India develops a separate law for ensuring internal democracy amongst the parties along with financial transparency and accountability in their working. This is important because unless we democratised our political parties, we can’t really democratise the Indian parliamentary system.

Adv. Ankit Tripathi is a commercial litigator, appearing before various courts in tribunals. He is working as an associate with the chambers of Adv. J. Sai Deepak.

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Policy & Politics

Extension of Covid-19 loan moratorium: The implications

It is important to remember that this is no ‘free lunch’ and that there is fine print to consider. To some homebuyers, the loan moratorium is a temporary respite and provides additional time to sort out their finances. To others, it adds to the monthly financial burden since the EMI amount would increase once the benefit period is over.

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Due to the Covid-19 and subsequent lockdowns across the country, the Reserve Bank of India (RBI) allowed banks and other lending institutions a three-month loan moratorium on EMIs from March to May 2020. This was later extended by an additional three months up to August 31, 2020.

The moratorium certainly helped borrowers, be they homebuyers or real estate developers, reeling under monetary pressure brought on by the pandemic. Additionally, RBI also maintained that banks should not term late payment as defaults. However, the banking regulator left it to the discretion of lenders to decide on whether to grant or withhold the moratorium, and for how long, depending on individual borrower profiles.

 Reportedly, the RBI is again mulling the possibility of extending this moratorium period. Whether it does so or not, borrowers must consider the pros and cons of availing of this facility if it is approved. Should they further defer their EMIs or stretch themselves and continue servicing their loans as per schedule?

No blanket advice can be given for this dilemma – as always, the devil lies in the detail. It is important to remember that this is no ‹free lunch› and that there is fine print to consider. To some homebuyers, the loan moratorium is a temporary respite and provides additional time to sort out their finances. To others, it adds to the monthly financial burden since the EMI amount would increase once the benefit period is over.

Benefits of the loan moratorium

Several borrowers, including developers, have already availed of the benefit of EMI moratorium for six months, with the possibility of a further extension. For developers, a one-time loan restructuring could have been a better option, but a further extension of the loan moratorium would certainly be welcome.

Previously, the RBI had also converted the accumulated interest for the moratorium period into a term loan. This means that the borrower would not have to immediately repay the accumulated interest on the loan once the moratorium ends.

For developers – it gives them more time to sort out their finances. Residential sales across cities are gradually reviving with the lockdown being lifted. With the festive season approaching, housing sales activity is likely to gather momentum. Therefore, an extension will give developers the time to collect funds via sales and later service their loans via these funds once the moratorium period ends. The fact that non-payment of EMIs will not result in falling into banks’ bad books is an added relief.

For individual borrowers – it will help both salaried and self-employed borrowers facing difficulties with servicing their car, home and personal loans due to the unique exigencies of the pandemic. It is an opportunity to regain financial clarity. Individual borrowers are also safe from unfavourable action by banks due to non-payment of EMIs, which would otherwise adversely impact their credit score. The RBI has ensured that availing of this moratorium will not be considered a default for the said period.

A word of caution for home loan borrowers

Over the past couple of months, some banks have reset their MCLR rates for borrowers who have availed the moratorium benefits. As a result, many borrowers are now receiving notifications regarding the resetting of their loan tenure, which has been reduced by a few months depending on the amount borrowed.

 Their monthly EMI amount will eventually increase with the lowering/ resetting of the loan tenure once the loan moratorium period is over. This can significantly upset financial planning in future. Since many individuals lost their jobs or took pay cuts due to COVID-19, they may find it even more difficult to repay these increased EMIs.

 Increased EMIs may lead to defaults by some existing home loan borrowers, especially those in a job crisis or other business uncertainties.

Also, while the sixmonth moratorium did provide relief in a time of uncertainty, home loan borrowers will now need to tread with greater caution if the RBI extends the moratorium.

Borrowers who want to consider restructuring their loans with their respective banks will need to check the fine print.

 It is important to establish the exact amount of their monthly EMIs once the moratorium period ends. They must also consider the possibility that the uncertainty continues, and that they may be unable to service their loans once the extension period expires.

Shobhit Agarwal is MD & CEO, ANAROCK Capital.

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Policy & Politics

Need for aggressive stand against extremism in Northeast

China is resorting to its old tricks to destabilise India, arming extremists with lethal weapons.

Vijay Darda

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The jawans of Assam Rifles in Manipur have been ambushed and three of them martyred in the same Chandel district in which the militants had launched a deadly attack on an Indian Army convoy in June 2015 killing 18 of our soldiers. It is clear from the latest attack that the militants have started raising their ugly head and are reasserting their defiance to such an extent that they can now dare to attack the Indian security forces.

The threat of further attacks by militants in the Northeastern states and the unrest there had started to loom large the moment Chinese incursions started in the Ladakh region. China is the biggest supporter of militants in the Northeastern states and the sole purpose of creating unrest there is to not let India shift the Army stationed there anywhere else! This move of China was further confirmed in the last week of June 2020 when a huge cache of arms was caught at the Thailand-Myanmar border. All the weapons were made in China. Prima facie, it seemed that the weapons were meant for the Myanmar terrorist outfit called Arakan Army, which China keeps aiding and abetting but the experts later confirmed that the Arakan Army does not use such weapons. Through the Arakan Army, this cache of arms was being sent to the militants of the Northeastern states in India. Militant groups in Myanmar and India work in tandem. However, India has also sought information from the Thailand government regarding the stockpile of arms and requested it to provide a detailed investigation report. Our intelligence agencies are at work too.

Though this stockpile has been seized, would China not have already delivered such arms cache before, is the moot question. There is nothing to suspect otherwise. In fact, one route to deliver a consignment of Chinese weapons in Northeast India is from Myanmar, wh e r e m a ny m i l it a nt groups have links with terrorist groups in Manipur, Nagaland, Arunachal Pradesh and Tripura. The other route is from Bangladesh. The Netherlandsbased think tank European Foundation for South Asian Studies (EFSAS) has categorically stated in its report that China is continuously engaged in fomenting tension in India. It is arming the rebels of Myanmar to stand against India. Many militant outfits in the Northeast have taken refuge in Myanmar. They cross the border, carry out attacks here and go back to Myanmar with impunity. India shares good relations with the government there, but the problem is that the terrain is inaccessible and the militants hide in the forests and mountains. Many a time, the armies of India and Myanmar carry out joint operations but the network of militants is very strong, and China too may be informing them about all the activities. So they escape.

So naturally, the question is what kind of strategy which could prove effective against extremism in the Northeastern states should be adopted. The administrative machinery has been strengthened and development brought about in the region, thanks to the efforts made by the previous Congress government and now the BJP regime. The common man too wants that peace should be restored, but the militants are so dominant that people remain silent. Here, the common man is sandwiched between the militants and the security forces. Many a time, the locals suffer too during the counter-measures by security forces against the extremists. This has bred resentment among the people on many occasions. Therefore, special attention is needed. But the major problem before the government is whom it should talk to in order to establish peace. There are many militant outfits and each one of them has its own agenda. Most of the rebel leaders dance to China’s tune.

Under the circumstances, it is imperative to adopt an aggressive stand against extremism while taking care of human rights. In 2015, when the Indian Army had entered the dense forests and destroyed the militants’ hideouts to avenge the martyrdom of their fellow soldiers, it had created a sense of fear in their minds. Almost all the militant organisations had gone silent. Though there have been a few isolated incidents, the militants could not carry out any major attack after that. The need of the hour is to put in place a firm, strict and aggressive strategy for the elimination of these militants. They should be cornered and cordoned off in such a way that no external element, including China, could deliver weapons to them under any circumstances. If we are successful in doing this, the screws on extremists could definitely be tightened to a great extent. But we will have to eliminate all those leaders and elements, too, who sneak into our system, nurture extremism and help it to spread on our soil.

Vijay Darda as served as Member of Parliament, Rajya Sabha for three consecutive terms and is Chairman of the Editorial Board, Lokmat Media.

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