The outbreak of the Coronavirus pandemic has sincerely challenged the golden triangle of the Constitution of India, viz, Article 14, Article 19, and Article 21 respectively at a varied number of events. The Covid-19 pandemic has been marked with the amusing spectacle of the persistent dichotomy between the State actions and the violation of fundamental rights of the citizens by and large. The principles of proportionality and reasonableness, which have been recognized by the Hon’ble Supreme Court of India as essential elements of valid State actions, have been blatantly ignored midst the outbreak of the Coronavirus pandemic. The administrative action should at all times bear a reasonable relationship to the general purposes for which the power has been conferred by the people. It is imperative to note that the government – at both the federal and the state levels – has insulated itself from legislative accountability, which is an essential feature of the checks and balances envisioned under our democracy.
The Government authorities have relied upon the Epidemic Diseases Act, 1897, and the National Disaster Management Act, 2005, to support the legitimacy of the actions being taken by them to ensure public health at large, however, the enormous question of law that outlines the issue herein, reflects that the Rule of law has been violated by improper implementation of the policy decision by the Government. The intended purpose and the stated purpose of the Government policies are fairly demarcated, even the execution is not based on a sound reason that has hence delivered results that perspicuously depicts the colorable exercise of power. Under article 14 of the Constitution of India, arbitrary and capricious acts of the State are annulled. The jurisdiction of Article 14 of the Constitution of India extends to the prevention of arbitrary and unreasonable actions of the State, which are “antithetical” to the rule of equality. It must be noted that the essence of court judgments in the lane of legislative accountability is limpid to the fact that with the development of the common law the exercise of discretion should be coupled with equity and shall be grounded in sound reason, even in the times of emergencies to ensure that the constitutional fabric remains unshaded.
The Right to Privacy is the right to be left alone. Amongst the series of events followed by the global pandemic that has been substantially challenging to uphold the fundamental rights of the citizens, the protection of the fundamental right to privacy in these times, is imperative for the purposes of constitutional sanctity. Data is the new oil and is an important game-changer to economic development in the 21st century. As judiciously quoted by William Edwards Deming, “In God we trust; all others must bring data”. Data is pivotal to capitalism, however, the user’s entitlement to privacy must not be disregarded in the due process. The Hon’ble Supreme Court has spelled out the individual’s Right to Privacy from Article 21 and Article 19(1) (d). This in consonance with Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, 1966 as well as the European Convention on Human Rights. Although the Constitution of India did not specifically refer to the Right of Privacy in an express manner, it can still be traced from the right to ‘life’ in Article 21. As decided under the case, Naz Foundation v. Government of NCT of Delhi (2010), “A citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing, and education among many other matters”.
In the case of Maneka Gandhi v. Union of India (1978), the Hon’ble Supreme Court of India has held that the expression “personal liberty” under Article 21 of the Constitution of India is of the widest amplitude and it covers a variety of rights. It is imperative to note herein, as held by the Supreme Court, in the judgment KS Puttaswamy v. Union of India (2017), the term Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that certain rights are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights. This article presents an orchestrated sycophancy with the widespread criticism towards State inaction to protect the fundamental rights of its citizens.
The incongruity between the Contract Tracing Methodologies To Curb The Spread Of Covid-19 and the Right to Privacy:
According to the landmark decision of the Supreme Court of India in, KS Puttaswamy v. Union of India (2017), the court held that the right to privacy is a part of the right to life and personal liberty and is a fundamental right under the Constitution of India. The pandemic is a public health emergency and individual rights may be restricted in the interest of the greater good. However, the fact that the Indian government tends to view citizen’s data as a natural resource to be exploited and monetized could not be disregarded. The Economic Survey of India 2018-19 mentions that citizens’ data should be treated as a public good and a few sections thereto are ought to be adapted by offering admittance to privately owned businesses to ease the pressure on government finances. There are all sorts of indispensable formalities to be observed before offering admittance to privately owned businesses, a normal adjunct to it being the very notion that it is unequivocally important to assure that the ministries and government agencies do not use this data as a way to underwrite.
In the fitness of the practice to generate a neutrally balanced opinion, the author places a due recognition to the fact that the Supreme Court of India has also observed that the right to privacy is not absolute and allows room for reasonable restrictions to be so placed in the interest of public order, however, any restriction is required to be reasonable i.e. within the legal framework of the land. As held under, V.K. Javali v. State of Mysore (1966), the expression ‘In the interest of ‘gives a greater leeway to the legislature to curtail freedom of speech and expression, for a law penalizing activities having a tendency to cause, and not actually causing public disorder, maybe valid as being ‘in the interest of’ public order. The restrictions imposed must have a reasonable and rational relation with the public order, security of the state, etc. If the nexus between the restriction and the public order etc. is farfetched, then the restriction cannot be sustained as being in the ‘interest’ of public order, etc.
The rationale behind contact tracing measures taken through mobile applications such as the Aarogya Setu Application (App) and other applications being, public health preservation and protection of larger public interest midst the fight against the faceless i.e. Covid-19, legitimizes the State action regards the data collection, however, the trepidation pursuant to the legal usage of the data collected through these methods still persists. The term reasonableness has been used in a biased manner which is contradicting the Rule of Reason. Whereto the outbreak of coronavirus pandemic is concerned the authorities have presented poor administration. Hence the colorable exercise of the power of administration can’t be overlooked to protect the constitutional sanctity and upheld the democratic principles in the largest democracy of the world.
On 1 May 2020, the Ministry of Electronics and Information Technology (“MeitY”) made it mandatory for government and private sector employees to install Aarogya Setu on their phones and said it was the duty of the head of the organization restoring to the new normal, to “ensure 100% coverage of the app among its employees.” Installing the app had also become mandatory for travel through railways and flights, but the revised guidelines did relaxed these norms and let individual states decide the protocols. The Aarogya Setu app is similar to the contact tracing app developed by Google and Apple and relies on Bluetooth technology. However, unlike Apple and Google, it also collects GPS location data. Apart from the GPS location data, ‘Response data’ collected from people using the Aarogya Setu app has the following data points-
Demographic data, which includes the name, mobile number, age, gender, profession, and travel history of the person; Contact data i.e. data about another person that a given person has come in close proximity with, including the duration of the contact, the proximate distance between the individuals, and the geographical location at which the contact occurred;
Self-assessment data i.e. the responses provided by the person to the self-assessment test on the Aarogya Setu app, and Location data i.e. data about the geographical position of an individual in latitude and longitude.
On Monday, 11 May, the ‘Aarogya Setu Data Access and Knowledge Sharing Protocol 2020’ was released by the government, to ensure secure collection of data by the app, and regulate how such data can be shared to achieve its purpose of assisting the fight against Covid-19.
Under the Protocol, the response data (whether containing personal data or de-identified data) can be shared with the health ministry of the central government, health departments of state governments, central and state disaster management authorities, or public health institutions like the ICMR. The data is to be shared only when it becomes ineluctable to come up with a health response. Data collected using the app is not ordinarily to be shared with third parties, whether other government agencies or private parties, but this can be done if it is “strictly necessary to directly formulate or implement appropriate health responses.” These third parties will not be allowed to re-use the data for any other purpose or share the data with anyone else. The Protocol calls out data that has undergone ‘hard anonymization’ – i.e. where an individual cannot be identified using any means to trace their identity from the data – to be shared with third parties, being, universities or other research institutions registered in India, subject to approval from a special committee.
The protocol is not a binding legal regulation, neither does it draws any authority from any law passed by the Parliament of India. While the lack of an underlying law in this behalf does mean it cannot be made mandatory for people to download and use the app, this does not invalidate the safeguards that the Protocol imposes on data-sharing. The Supreme Court held in the case, Gobind v. State of M.P. (1975), that “Privacy, or the right to be let alone, is an interest that man should be able to assert directly and not derivatively from his efforts to protect other interests. A useful rule of thumb is that data privacy must be safeguarded even in times of emergency.
While the central government has residuary powers under Section 6 of the Disaster Management Act, 2005, and the state authorities claim to derive their powers from Section 2(1) of the Epidemic Diseases Act, 1897, it becomes onerous to advocate the fact that such laws do in fact grant powers to the authorities to collate, organize and disseminate information of the citizens in the manner in which it has been done. For the actions to be proportional and not manifestly arbitrary, states may collect minimum data, but it is to be primarily ensured that such data is anonymized being, used for the limited purpose of handling the public health situation, and not store or transfer the data to any third parties not authorized to access such data. Data anonymization may seem a solution, but it is to be noted that, technical and legal literature over the last decade has depicted limitations of data anonymization; with the advancements in data sciences and machine computing it has become easy to identify and reconstitute personal information from ‘anonymized’ data.” In the light of unidentified and unregulated data anonymization standards, the very essence of Article 14 of the Constitution of India is constantly challenged, through States’ whimsical approach in surveillance policy implementation.
It is pertinent to note at in the larger public interest, Section 12 of the Personal Data Protection Bill, 2019, does allow the processing of personal data without consent during medical emergencies and pandemics. However, the Bill has not been passed till date. Measures such as the publishing of lists of affected individuals, along with their personal details are definitely unconstitutional, which is eventually perpetuating unnecessary stigma and aspersions.
The pertinent question that orbits the discussion is whether, the government policies midst the outbreak of the pandemic purports to Health surveillance or State surveillance?
Privacy is the constitutional core of human dignity. It is the duty of the State not only to protect the human dignity but to facilitate it by taking positive steps in that direction. Public health interest must have to be neatly collaborated with sound State actions that cherish the sanctity of the constitutional values.
In the fitness of the practice to generate a neutrally-balanced opinion, the author places due recognition to the fact that the Supreme Court of India has also observed that the right to privacy is not absolute and allows room for reasonable restrictions to be so placed in the interest of public order; however, any restriction is required to be reasonable, i.e. within the legal framework of the land.
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Remittances are the lifeline for many developing countries
For more than 60 nations, international remittances represent at least 5% of their GDP.
India is the largest recipient of remittances in the world. The data from the balance of payment indicates that private transfers mainly representing remittances by Indians employed overseas remained at $83 billion in FY19 and FY20. After declining modestly to $80 in FY21, it again improved to $89 billion in the financial year ending March 22.
Remittances are an important part of the national income of developing and low income countries. They play a significant role in economic development of these countries. As per the World migration report 2022, there were 281 million (or 3.6% of the world’s population) international migrants globally with 169 million (60% of total migrants) labour migrants in 2020. Assuming an average household size of four, more than 1 billion people benefited from the remittance flows in 2020. Furthermore, the data shows that the top destinations of international migrants were the USA, Germany, Saudi Arabia, Russia and the UK. Meanwhile, the largest number of international migrants in 2020 originate from India followed by Mexico, Russia, China and Syrian Arab Republic, with Syria having a large number of refugees due to widespread displacement over the last decade.
Meanwhile, global remittances have increased more than 5 times over the past 2 decades. Of the total international remittances of $702 billion recorded in 2020 (decline from $719 billion in 2019 owing to Covid-19 pandemic) around 77% or $540 billion was received by low and middle income countries. High-income countries including the USA, UAE, Saudi Arabia, Switzerland and Germany are the top countries sending remittances. On the other hand, developing countries, India and China received the maximum remittances ($83 billion and $59 billion respectively) in 2020, followed by Mexico, the Philippines and Egypt. Even though in absolute terms the remittances are significantly higher in India and China, their share as % of GDP is very low (3.1% of GDP and 0.1% of GDP respectively). But certain smaller countries like Tongo, Kyrgyz Republic, Tajikistan, Lebanon, Nepal depend significantly on remittance flows. The share of remittances in GDP of these countries is more than 24%.
When travel restrictions were imposed due to the pandemic, it was thought that remittances would be badly hit. However, the overall decline in 2020 was only modest when compared to 2019, -2.4% yoy. This has been possible due to policy response to support remittance flows together with shift from informal channels (movement of cash through borders) towards more formal channels through increased digitalisation of financial transactions. The impact of the pandemic on remittances, though limited, has been uneven with certain countries (Europe and Central Asia in particular) and certain workers (those engaged in severely affected sectors as travel and tourism) being affected more than others. Many workers lost their jobs or had to come back to their native countries while others got stuck in foreign countries with no job and money or had to undertake pay cuts. However, some migrants benefitted due to various welfare programs of their respective host countries and sent back more money.
Another incident which is likely to have a negative effect on remittance flows is the Russian invasion of Ukraine. It is more than 5 months with no signs of the war drawing to a close. Countries of Central Asia including Tajikistan and Kyrgyz Republic where the dependence on Russia for remittances is quite high (82% for the latter and 76% for the former) will be impacted significantly by the persisting war. As per the World Bank, the remittances flowing to Tajikistan from Russia are likely to fall by more than a fifth, thereby leading to shrinking of its economy by 2%. Even Kyrgyzstan economy is projected to decline by 5% with the remittances from Russia expected to fall by a third. Coming to India, it is the largest recipient of remittances in the world. The data from the balance of payment indicates that private transfers mainly representing remittances by Indians employed overseas remained at $83 billion in FY19 and FY20. After declining modestly to $80 in FY21, it again improved to $89 billion in the financial year ending March 22. The RBI survey-based remittance estimates 2020-21 shows that India received maximum remittances from USA, followed by the UAE, UK, Singapore and Saudi Arabia. These top 5 countries accounted for 59% of the total remittances flow to India. Interestingly, UAE was the top source country as per the previous survey 2016-17 and it has been replaced by the USA now. Apart from that, the UK and Singapore too emerged as important source, replacing Qatar and Kuwait from the top 5 sources of remittance inflows. In fact, the share of Gulf Cooperation Council (GCC) group together has declined to 30% from more than 50% in 2016-17, owing to various factors, including low oil price and slow pace of migration amidst stricter labour laws, higher work permit renewal fees and taxes. The pandemic further led to lower demand for white collar workers in these countries.
If we look at the state wise distribution of remittances, Maharashtra is the top recipient with its share in total inward remittances increasing significantly to 35.2% (from 16.7% in previous survey), pushing Kerala to the second position (10.2% share compared to 19% earlier). Tamil Nadu (9.7%), Delhi (9.3%) Karnataka (5.2%) are the other major recipients of remittances. These top five sates account for around 70% of the total remittances. The remittances are the major source of foreign exchange for India besides being used to finance our huge trade deficit. This necessitates building and developing a conducive policy ecosystem for these flows such that they flow to India at lower cost. In line with the crucial role that NRI remittances play in our country, the RBI has recently liberalised NRI deposits.
To conclude, remittances are the lifelines for low income developing countries. This can be supported by the fact that for more than 60 countries, international remittances represent at least 5% of their GDP. Those against migration and remittances argue that there are potential costs to the country receiving remittances if moving out from the country creates labour shortage in the home country or if the remittances sent are significantly high, then it can lead to appreciation of the currency, thereby making its exports less competitive. However, these costs are not of value when seen in the context of resource scare low income developing countries. Remittance inflows for low and middle income countries are even higher than FDI and aid. Efforts should thus be made by the authorities to reduce transaction costs. As per the World Bank, global average cost of sending the remittances is currently 6.09% of the amount sent for US$ 200 and the UN SDG target is to reduce it to 3% by 2030. In this context investment in digital technologies by remittance service provider will help a long way in reducing the cost of remittance flows and will also ease the KYC process.
The author works as a senior economist in the Indian banking sector with core interests in public administration, external sector dynamics and global economics. Previously, she has worked on country risk analysis of emerging market economies with a French consulting firm. She holds a Master’s degree in economics from the Jawaharlal Nehru University and a bachelor’s from Sri Venkateshwara College, Delhi University.
NITISH DOES ANOTHER U-TURN
There’s a good reason why Tejashwi Yadav used to refer to the JD(U) leader as Paltu Uncle (someone who does U-turns). Tejashwi was referring to Nitish Kumar’s habit of changing coalition partners to suit his moods and personal ambitions. Certainly, Nitish has been vacillating between the BJP and the Opposition. In 2013, he ditched the BJP with whom he had a cordial rapport during the Vajpayee-Advani era, protesting against the elevation of Narendra Modi as the BJP’s Prime Ministerial candidate. Two years later, he tied up with the RJD and the Congress to form the Mahagathbandhan for the 2015 polls. Although the NDA got only 58 of the 243 seats in the Assembly polls, the JD(U) was pushed to the second position with the RJD winning 80 seats, while the JD(U) got only 71, though both had contested 101 seats each. However, as a senior leader, Nitish Kumar became the CM with Lalu Yadav’s son and heir apparent, Tejashwi as his deputy CM. That alliance did not last very long and Nitish was soon back with the BJP. He contested the 2019 Lok Sabha with the NDA, at a point when the Opposition needed a face and Kumar could have emerged as a leader uniting all the opposition parties together. In the 2020 Bihar Assembly polls, the JD(U) came third with RJD emerging as the single largest party and even the BJP getting more than the JD(U), but again it was Nitish who was made the CM.
However, his having walked back to the Mahagathbandhan has happened at a time when the Opposition still lacks a viable face to take on Narendra Modi. As a six-term CM representing a state in the Hindi belt, certainly Nitish’s bid would have a certain appeal that is missing from Mamata Bannerjee or K. Chadrasekhar Rao’s candidature. Nitish also has a cross-party goodwill for his 2015 swearing-in ceremony had seen leaders from various parties, including the Abdullahs, Kejriwal, Mamata Bannerjee, Yechury and Rahul Gandhi present. Given the fact that the Congress is in no shape to lead the charge against the BJP and Modi, a united opposition would do well to throw its weight behind Nitish’s candidature.
That is not to say that Nitish’s popularity has not waned. Certainly he is not the same leader that he was in 2013 when he took a stand against Modi’s candidature as PM. Much water has flown under that bridge since then, his own credibility has also taken a hit after he tied hands with Modi after first opposing him. Neither is the JD(U) the single largest party in the state. Riding on Nitish’s coat-tails, the BJP has made considerable inroads—which makes you wonder about the former’s political smarts. But the Opposition is currently so bankrupt that any viable alternative to the Gandhis will do, even if it’s one with a slightly damaged political aura. Over to 2024, and we may see a Modi Vs Nitish face off, that is, of course, if Nitish remains put in one place till then and doesn’t do another U-turn.
United States still searching for a regional role
Through the Indo-Pacific Economic Framework, the United States tends to assure its Indo-Pacific partners that it still has geo-economic clout in the region, but the US has been continuously compelled by China to find a regional role in Asia-Pacific at least since 2009.
The United States-led Indo-Pacific Economic Framework (IPEF) is calling for prosperity in the region. It, therefore, solicits a critical assessment. We need to evaluate if it is a serious effort toward “region-building” in the Indo-Pacific or just another geopolitical manoeuvring by the United States to find a regional role. The context has to be how the American partners in the region would benefit, and not what the United States thinks it must do. The members must, therefore, approach this framework with adequate caution. Here’s why.
First, a White House statement of 23 May clearly asserted the significance of the Indo-Pacific region for the United States. It suggests that trade with the Indo-Pacific supports more than three million American jobs and attracts approximately $900 billion FDI in the United States. So, in congruence with a previous American initiative viz. Build Back Better World (B3W) that aimed to create American jobs, IPEF, too, carries similar ambitions. In fact, countries which supported the B3W are yet to decipher any pragmatic gains. B3W, a G7 backed $40 trillion infrastructure plan launched in June 2021, was positioned to focus on four potential areas viz. climate, health and health security, digital technology, and gender equity. It has been almost a year now, and the initiative continues to remain in political vacuity. Interestingly, B3W was apparently positioned against China’s Belt and Road Initiative (BRI).
Today, for the IPEF, the real challenge is whether it can create a win-win situation for other developing countries in the region, or is it all about the agenda of restoring “American exceptionalism”. Instead of laying down a concrete geo-economic roadmap for the B3W, and for instance, how private sector capital as mandated can be mobilised to finance it, the United States has brought its partners into a new bandwagon–the IPEF. Interestingly, IPEF carries some overlapping agenda on similar lines as the B3W, amid its call for supply chain resilience, clean energy, or digital economy. In 2019, the United States launched a Blue Dot Network (BDN) as a certification system that aimed to ensure transparency in infrastructure financing. This was also positioned against the BRI –reflecting an American impatience to counter China even through frameworks with unmatched mandate. The IPEF discourse, too, is moving in this direction.
Second, IPEF is not positioned as a traditional free trade agreement. And cannot be compared with a mega-regional bloc like Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CP-TPP). This is because, for a cooperation framework like IPEF, it is not easy to define concrete deliverables e.g. on standards, or for that matter, supply-chain resilience. The propositions envisaged under the Supply Chain Resilience Initiative (SCRI) and China+1 policy, both aiming to reduce dependence on China, are yet to yield any pragmatic outcome. Such deliverables, however, can be defined only in case of mega-regional trade agreements.
Third, IPEF cannot even be compared with congregations like Asia-Pacific Economic Cooperation (APEC) that was formed in 1989 and includes countries on both sides of the Pacific Ocean. Almost all the issues that comprise the core mandate of both B3W and IPEF are already there on APEC’s agenda, and all countries currently in IPEF except India are also APEC members. So, at least for India, joining APEC would create more geo-economic gains instead of relying on IPEF–a congregation that seems to be yet another non-serious American effort after BDN and B3W. It’s no longer about geographic eligibility because United Kingdom which does not share the Pacific has already applied to join the CP-TPP. And China, too, which was deliberately kept out from President Obama’s TPP owing to stringent TRIPS-plus commitments has also expressed its interest in joining it now. With such reconfigurations, a rule-based system can’t be determined by economic frameworks like IPEF, but by mega-regional blocs which not only hosts China, but also Australia, Japan, South Korea, and others.
Fourth, on a strategic note, a crucial issue for the Asian allies of the United States is to decipher for themselves the relationship between Quadrilateral Security Dialogue (Quad) and Australia-United Kingdom-United States (AUKUS). AUKUS was formed by the United States last year by including its old ally i.e. the UK, along with Australia, but by excluding Japan and India which are already there in Quad. Quad’s mandate has been gradually diluted since 2007, so the question remains if AUKUS complements its security role or not.
Therefore, the Indo-Pacific countries need to exercise caution in approaching the IPEF. Through IPEF, the United States tends to assure its Indo-Pacific partners that it still has a geo-economic clout in the region and that China has yet not displaced it. Perhaps, it is largely mistaken because it has been continuously compelled by China to find a regional role in Asia-Pacific at least since 2009. Moreover, IPEF is a unique deal for the United States, but “just another” plan for its partners especially India and Southeast Asian countries. IPEF can make sense only if it advances “region-building” in the Indo-Pacific, but without prioritising American interests. Also, the American narratives against China, even if appealing for few Indo-Pacific countries, cannot help sustain their geo-economic interests.
Faisal Ahmed is a Professor of International Business at FORE School of Management, New Delhi. Alexandre Lambert is the Academic Director at Geneva Institute of Geopolitical Studies, Geneva. They are authors of the book The Belt and Road Initiative: Geopolitical and Geoeconomic Aspects published by Routledge, c.2022.
Dispute resolution: Adversarial versus Amicable
Parties to a dispute adopt a multi-pronged approach to find a resolution. The resolution outcome depends on the nature of the dispute, relationship and expectations, economic financial losses and, the process adopted for resolution. The outcome can have a long-term impact on the business growth of a company. This article discusses the nuances of different dispute resolution processes that are broadly categorised as adversarial versus amicable in nature. Adversarial is defined in the Merriam-Webster dictionary as “involving two people or two sides who oppose each other: or an adversarial system of justice with prosecution and defence opposing each other. Amicable is described as “someone or something that is friendly and shows peace-loving characteristics. Friendly in feeling; showing goodwill; peaceable, an amicable discussion”. Disputes emanate from a breach of contract or fraud. The strategy to handle the conflict can be adversarial or amicable, with the same or similar outcome. The purpose is to find a quick, efficient, cost effective and enforceable solution that puts to rest the litigation, and allows the parties to go on with their respective businesses. The most obvious form of finding a resolution is to knock the doors of the court. This is either through litigation or alternate forms of Dispute Resolution (ADR) which is Arbitration and Mediation. Litigation follows an adversarial path. It is a formal judicial process wherein parties approach the court to settle the dispute. The court appointed Judge acts as a referee, and the contesting parties present their case in a formal manner. Based on the evidence the Judge or Adjudicator passes a decree or judgement. In litigation the Judge has to strictly follow a definite prescribed procedure, which is as per the codified procedural law: Code of Civil Procedure, 1908 and The Commercial Courts Act 2015. Approximately 10- 11 steps need to be fulfilled to complete a Court case, which includes service of summons, filing of pleadings and documents by both parties, discovery and interim orders, discovery of documents, witness statements, production of proof and evidence, crossexamination of witnesses, arguments which the Judge examines and concludes in a court decree. Discovery, proof and document production is lengthy and often risky. It requires sharing of confidential marketing and financial data with the opposite party and public disclosure, which can hamper the business growth of the Company. Litigation comes with a bagful of legal expenses for the paper work which is time consuming and costly. Litigation in comparison to ADR (Alternate Dispute Resolution), is rigid which strictly follows the procedures, statute and rule book. If the parties do not agree with the decisions of the court, they can appeal to a superior court, provided certain conditions are fulfilled. If not appealed, the decree or judgment needs to be legally executed to enjoy the fruits of the decision. ADR methods are non-adversarial, flexible and most importantly maintain confidentiality. It empowers parties to work together to amicably settle complex issues. The most common ADR methods are Conciliation, Mediation, Negotiation, and Arbitration. Arbitration is adversarial, although more supple than court litigation. It is a process in which an experienced, independent and neutral is appointed as an Arbitrator. It germinates from the clauses of a contract, where the parties agree that in case any dispute arises they would opt for arbitration rather than court. In comparison, arbitration is flexible, time and cost effective than litigation. It does not require the rigours of lengthy litigation by strictly following the procedural law. The Arbitrator/s along with the parties engineer the procedure and rules to be followed. The rigid steps of evidence gathering, witness statements need not be followed and a lot can be resolved on the basis of documentary proof. The arbitration proceedings conclude into an Award, which is at par with a Court decree and is final and binding on parties. Both the Court decree and Arbitration award require a separate process of enforcement that may require Court intervention. If the court decree is challenged in appeal, it can take several years before it reaches a stage of finality. In comparison the arbitration award is not easily contested, if challenged it is only under strict and narrow grounds. Conciliation is an amicable form of despite resolution. A method when a skilled expert is appointed to help the parties reach an agreement. It is confidential and not in the public domain. The skill of the Conciliator/ Mediator is crucial to the success of the conciliation and enforcement of the settlement agreement. It is a voluntary process, where the Conciliator helps to find common grounds between the parties. As such Conciliation is friendly, less hostile and an antagonistic process. It culminates in a settlement agreement that is a joint decision of both parties. Conciliation/mediation are informal processes that afford the parties flexibility to communicate between themselves in a safe environment in the presence of the Conciliator. The parties control the process, solution and the final outcome. Parties take a decision for their own dispute whereas in litigation and Arbitration it is the Court Judge or Arbitrator who decides the outcome. In conclusion, the adversarial nature of dispute resolution especially Court litigation is time consuming, entails lengthy discovery with risks to confidential information and requires large legal budgets. In comparison ADR (alternate Dispute Resolution) can be more efficient and effective. In addition to the economic benefits of ADR, it can help the disputing parties who are deeply invested in the issue to find joint solutions and retain their relationship. A trained Conciliator brings some form of expertise to bear on the situation and help the parties to settle all kind of issues that can go beyond the dispute at hand. Conciliation/ Mediation can be done at any stage, pre-or post-litigation. Girija Varma is a mediator, arbitrator, legal counsel and develops dispute resolution strategies. She is a Fellow (Stanford Univ.), LL.M. (Cornell Univ) and British Council Chevening Scholar. Her expertise is in intellectual property, commercial laws and damage assessment.
WEST NEEDS TO LISTEN TO INDIA ON UKRAINE VS RUSSIA
This month it will be six months of the Russia-Ukraine conflict—six months of non-stop war and sanctions that have endangered food security all around the globe and led to increasing oil prices and skyrocketing inflation. The majority of the economies around the world are predicted to be sliding into recession. Amid this, Finance Minister Nirmala Sitharaman has assured India that “there is no question of India getting into recession or a stagflation or a technical recession like the US”, that the country’s economic fundamentals are strong, GST collection has gone up, manufacturing is picking up, the country’s debt to GDP ratio is lower than many developed countries, etc. All very commendable when disruption has become the norm in the world in the last two and a half years—from the Covid-19 pandemic, which is still not over, to the Russia-Ukraine war. Whatever the Opposition might be saying, that India is going the Sri Lanka way, the fact is that major economic missteps have to be taken for that to happen, like the way it happened in Sri Lanka—the overnight switch to organic fertilisers that impacted tea and rice production, thus hitting the country’s main revenue earner and destroying its food security. Of course, as the government has been saying, some states have to show some fiscal responsibility as they can derail the India story. It is a different matter that the “top” fiscally irresponsible states are Opposition ruled. But that is a story for another day. The bottom line is, if India had not shown the sagacity to buy discounted Russian oil and thus keep the disruption at a minimum, it might have gone the way many western countries are headed. Take a look at Germany, for instance, the European country with the maximum dependence on Russian gas, supply of which it has promised to phase out. It is just as if to show Germany what phasing out would mean Vladimir Putin has weaponized gas by shutting down the Nord Stream pipeline under the pretext of maintenance. As a result of which, Germany’s supply has been hit to the extent that heating may become a problem in winter and rationing of gas for domestic use may have to start. The energy crisis is so severe that the German government is scouring for fuel, while also reactivating its coal plants, thus adding to major air pollution. And to think of the pressure that India has had to face—and is still facing—when it refused to cut down, and instead ramped up its purchase of Russian oil. It is but natural for India to keep its national interest ahead of “principles” on the Russia-Ukraine conflict. The charge often hurled at India of funding Russia’s war, is hokum, because even after increasing its purchase of Russian fossil fuel, after the first hundred days of the war, India was the eighth largest buyer in the world, with the top seven places reserved for China and nations such as Germany, Italy, Netherlands, Turkey, Poland and France. The need of the hour is an immediate cessation of violence, which India has been insisting on. Instead what we are witnessing is Ukrainian President Volodymyr Zelenskyy trying to make the West believe that he can win the war and it is the West’s duty to fund this war between “good and evil”. He has found an enthusiastic cheerleader in US President Joe Biden, who has made this war into a matter of personal prestige and is fighting a proxy war with Vladimir Putin by arming Zelenskyy with the most sophisticated weapons for free—weapons that somehow do not seem to be winning the war for Ukraine, and are bound to find their way into the black market sooner than later. This is not to justify Putin’s invasion of Ukraine; but if the West has such a huge problem with him, it should try to remove him, instead of taking the sanctions-forRussia and weapons-for-Ukraine route, for, till date, the Russians are not showing any signs of rising up against Putin. But the cascading effect of the war and the sanctions has affected the whole world. It doesn’t seem that Putin is losing the war, notwithstanding western assertions to the contrary. He seems to be effectively blockading Ukraine, and punishing the West. In fact, the immediate casualties of the war are the Western leaders: Boris Johnson has lost his chair, Emmanuel Macron his majority and Joe Biden is about to lose his midterm elections. Hence, isn’t it time for the West to insist on a cessation of violence, to ask Zelenskyy to negotiate with Putin and settle for a truncated Ukraine and peace? When it comes to giving up some territory to Putin—territory which anyway was highly contested—and reduce the suffering of the rest of the world, the latter is definitely a better option. The West needs to ask Zelenskyy to be a true leader, instead of a Vogue poster boy. Listen to India for once and stop this war. Enough is enough.
Why Hulla Bol when India is doing better than many?
Price rise is only a ruse. As the noose tightens on Congress leaders, the country is certain to witness more such protests on one pretext or the other.
The Halla Bol protest by the Congress on Friday (5 August) against increase in prices of essential commodities has nothing to do with reality. At the best, this was an attempt to demonstrate Congress’ anger at the various ED cases against members of the Nehru-Gandhi family and other members of the party for their acts of omissions and commissions when the party led United Progressive Alliance (UPA) was in power at the Centre. This was the Congress’ message to the Centre that if you investigate into various cases of corruption, be ready to face the music. The Congress thinks it has many aces up its sleeves to create troubles for the government. As the noose tightens on Congress leaders, the country is certain to witness more such protests on one pretext or the other. Price rise is only a ruse. And surprisingly the protests happened after a full-fledged debate in Parliament on the issue. The Congress had raised the issues in Parliament but did not have the courage to listen to the response. It walked out when the Union Finance Minister Nirmala Sitaraman was giving reply to the issues raised during the debate. The opposition was trying to create an impression that the situation of India’s economy was so bad that it would go the Sri Lanka way. Sitaraman asserted that the parameters were strong and there was no chance of India getting into recession or stagflation. Despite severe crisis such as the Covid-19 pandemic, Omicron and Ukraine conflicts, the country was able to manage to keep inflation to a level on 7%. She pointed out that during the UPA regime, inflation had touched double digit figure and for 22 consecutive months, the figure was pegged at 9%. To understand what this 7% inflation means, there is a need to understand this in the global context. Data released by governments across the world reveals that India ranks at 108 out of 172 countries which means that its situation is better than 107 countries in the world. Of these, 63 countries have inflation of more than 10%. The United States, Germany and many other developed economies have higher inflation than that of India. Food prices have risen globally due to supply side management triggered by the Ukraine crisis, climate change and the Covid pandemic. Prices have begun to stabilise, but this will take time. India has done well by taking care of the poor by giving them free ration. Close to 80 crore people have been provided this free food protection. The prices of vegetables, potatoes and onions have seasonable variables, but they are well within manageable limit. Not that the government is not recognising that there is pressure on food prices. At a meeting of the Niti Ayog on Sunday, Prime Minister Narendra Modi gave a call for stepping up domestic production by modernising agriculture, animal husbandry and food production. This would make India self-sufficient in farm sector and become a global leader, he said. Stress was given on diversification of crops to meet the domestic demand and reduce demand on imports. India imports edible oil from Malaysia and Indonesia and spends close to Rs one lakh crore just on this. The cost had gone up due to restrictions imposed by Indonesia on exports after the Ukraine crisis. The opposition needs to appreciate that when the entire world is suffering, you cannot single out India and predict gloom. Does it understand that there is global shortage of shipping containers leading to high bidding among traders to get their goods on the ships in an interconnected and interdependent world? Prices of electronic appliances that use micro-chips are likely to get costlier due to acute shortage of these chips. The factories manufacturing these micro-chips had shut down during Covid-19 Pandemic. Demand piled up and the manufacturers are finding it difficult to meet the backlog plus additional demands. Traders say that there is a waiting period of up to one year. In Taiwan, that produces about 63% of the chips, production suffered due to drought since chip-making demands huge water supply. According to an estimate, the chip crisis is going to be there till 2023. There has been a substantial increase from 10 to 30 per cent in the price of goods that use these chips including televisions, computers, kitchen appliances and cars. If the China-Taiwan confrontation intensifies, this would aggravate the crisis and the waiting for buying new cars could increase. Oil prices have increased due to low demand during Covid resulting in low income by oil producing countries and an increase in prices now to compensate for that. They are not increasing production to match the increase in demand. Global situation such as the Russian war on Ukraine has added fuel to fire. This will take time to stabilise. And we know that increase in oil prices have cascading influence on the economy since transportation becomes costly. Let us try to understand the oil situation for India. In 2014, when the Modi government came to power, the price of crude oil was 98.97 USD. It nose-dived to 43.67 USD in 2016, rose to 71.34 USD in 2018 and came to an all-time low of 41.96 USD in 2020. But it has touched a high of 106.92 USD in 2022. It has been predicted that the prices would increase up to 140 USD in months to come, thereby predicting hard times. This pressure had been faced even by the US that released a huge volume of oil from its reserves but the impact on its domestic market was only marginal. But amidst global economic pressure, India is an island of hope. Sitaraman pointed out that despite projection of a lower growth, India would still be counted among the fastest growing economies of the world. Just to make a comparison, she pointed out that: “4,000 banks in China are reportedly on the verge of going bankrupt. In India, the gross non-performing assets (NPAs) of scheduled commercial banks has hit a six-year low of 5.9% in FY 2022.” This certainly would not be music for the Congress that tries to show China in better light to belittle the Modi-government. Talking about the economic parameters, the Finance Minister pointed out that the GST collection since its inception was the second highest in July 2022 at Rs 1.49 lakh crore. She quoted economist Raghuram Rajan who said that the “the RBI has done a good job in increasing foreign exchange reserve of India, insulating India from problems being faced by neighbouring countries like Pakistan and Sri Lanka… New Delhi is less indebted which is a good sign”. India boasted of a robust foreign exchange reserves at $573.875 billion by the end of last month. While people may feel the pinch, there is no reason to be gloomy. After bad years, India is showing signs of faster recovery. Foreign investors are showing signs of confidence on our economy. At such a situation, those who predict gloom and slowdown are definitely not speaking the truth and are motivated by vested interests. Confidence is needed on the system and our strengths.
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