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GS Paper: GS2

  • India must bet on patience in Afghanistan

    Context

    Notwithstanding the current triumphalism in Pakistan at “overthrowing” the US-backed order in Kabul and “pushing” India out of Afghanistan, India can afford to step back and signal that it can wait.

    Uncertainties about the future

    Two interconnected political negotiations unfolding are likely to determine Afghanistan’s immediate future.

    1) Setting up political order

    • One is focused on building a new political order within Afghanistan.
    • More than a week after President Ghani fled Kabul, there is no government, let alone an inclusive and internationally acceptable one, in sight.
    • Before Pakistan can get the Taliban to share power with other groups, it has to facilitate an acceptable accommodation between different factions of the Taliban.
    • Then there is the problem of including the non-Taliban formations in the new government.

    2) Gaining international recognition

    • The international community has set some broad conditions for the recognition of the Taliban-led government.
    • Besides an inclusive government at home, the world wants to see respect for human rights, especially women’s rights, ending support for international terrorism, and stopping opium production.
    • Pakistan will hope to get some of its traditional friends like China and Turkey or new partners like Russia to break the current international consensus.
    • Pakistan and the Taliban, however, know Chinese and Russian support is welcome but not enough.
    • They need an understanding of the US and its allies to gain political legitimacy as well as sustained international economic assistance.
    • The West, too, needs the Taliban to facilitate the evacuation of its citizens from Kabul and, sooner rather than later, deliver humanitarian assistance.

    How India differs from Pakistan in its approach towards Afghanistan?

    • India has never been in strategic competition with Pakistan in Afghanistan. India’s lack of direct geographic access to Afghanistan has ensured that.
    • Both their strategies have roots in the 19th-century policies of the Raj.
    • Forward policy: The Pakistan Army’s quest for strategic depth in Afghanistan harks back to the “forward policy” school that sought to actively control the territories beyond the Indus.
    • The forward policy seeks political dominance over Afghanistan in the name of a “friendly government” in Kabul.
    • Masterly inactivity: India, in contrast, stayed with a rival school in the Raj that called for “masterly inactivity” — a prudent approach to the badlands beyond the Indus.
    • India’s strategy seeks to strengthen Kabul’s autonomy vis-à-vis Rawalpindi and facilitate Afghanistan’s economic modernisation.
    • The Afghan values that India supports — nationalism, sovereignty, and autonomy — will endure in Kabul, irrespective of the nature of the regime.

    Consider the question “What are the implications of the return of Taliban in Afghanistan for India? What should be India’s approach in dealing with the Taliban controlled Afghanistan?” 

    Conclusion

    Strategic patience coupled with political empathy for Afghan people, and an active engagement will continue to keep India relevant in Kabul’s internal and external evolution.

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  • Protest should not hinder traffic: SC

    The Supreme Court took a nuanced stand saying farmers have the right to protest but the agitation should not hinder traffic or public movement.

    Right to Protest

    • When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
    • Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.
    • In India, the right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.

    Constitutional Backing

    • Article 19(1) states that All citizens shall have the right:

    (a) to freedom of speech and expression;

    (b) to assemble peaceably and without arms;

    (c) to form associations or unions;

    (d) to move freely throughout the territory of India;

    (e) to reside and settle in any part of the territory of India; and

    (f) omitted

    (g) to practice any profession, or to carry on any occupation, trade or business

    Reasonable restrictions on Protest

    • Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
    • Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, the right to peaceful protest is bestowed to Indian citizens by our Constitution.
    • Article 19(2) imposes a restriction on a person to prevent him from making a defamatory statement which defames the reputation of another person.
    • Article 19(3): The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation, or incitement to an offense.

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  • [pib] Bhuvan Yuktdhara Portal

    A new portal under Bhuvan “Yuktdhara” has been released to facilitate planning of new MGNREGA assets using Remote Sensing and GIS based information.

    Bhuvan Yuktdhara Portal

    • Yuktdhara is a geospatial planning portal meant for facilitating Gram Panchayat level planning of MGNREGA activities across India.
    • Portal integrates a wide variety of spatial information contents to enable a holistic approach towards planning using open-source GIS tool.
    • Subsequent to pan Indian initiative of geo-tagging assets created under Mahatma Gandhi NREGA, harnessing the strength of GIS for identifying upcoming activities and their locations was a natural corollary.

    Features of the portal

    • The current level of integration under Yuktdhara, as part of Bhuvan, incorporates multi-temporal IRS satellite data of better than 3M detail in natural color, digital terrain, thematic layers as wed as locations of MGNREGA works and watershed management assets.
    • The interface currently has a Gram Panchayat-specific logo to address planning as well as approval mechanisms intended to ensure the evaluation and acceptance of proposed activities.
    • This will be enhanced for other levels of users gradually.
    • Access for other Gram Panchayat will be facilitated at the earliest, by addressing the case multiple logins created for geotagging and moderation.

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    Back2Basics: MGNREG Scheme

    • The MGNREGA stands for Mahatma Gandhi National Rural Employment Guarantee Act of 2005.
    • This is labour law and social security measure that aims to guarantee the ‘Right to Work’.
    • The act was first proposed in 1991 by P.V. Narasimha Rao.

    The objectives of the MGNREGA are:

    • To enhance the livelihood security of the rural poor by generating wage employment opportunities.
    • To create a rural asset base that would enhance productive ways of employment, augment and sustain a rural household income.

    Features of the program

    • MGNREGA is unique in not only ensuring at least 100 days of employment to the willing unskilled workers, but also in ensuring an enforceable commitment on the implementing machinery i.e., the State Governments, and providing a bargaining power to the labourers.
    • The failure of provision for employment within 15 days of the receipt of job application from a prospective household will result in the payment of unemployment allowance to the job seekers.
    • Employment is to be provided within 5 km of an applicant’s residence, and minimum wages are to be paid.
    • Thus, employment under MGNREGA is a legal entitlement.

  • What Indian lawmaking needs: More scrutiny, less speed

    Context

    The recent Monsoon Session of Parliament is proof that the speed of passing laws trumps their rigorous scrutiny in our legislative process.

    Issues with lawmaking process in India

    1) Avoiding pre-legislative scrutiny

    • In our parliamentary system, a majority of laws originate from the government.
    • Each ministry decides the path its legislative proposals will take from ideation to enactment.
    • For example, last year, the Shipping Ministry requested public feedback on the two bills — Marine Aids and Inland Vessels.
    • This mechanism enables the strengthening of the legal proposal through stakeholder inputs before being brought to Parliament.
    • However, ministries expedite their bills by not putting them through a similar pre-legislative scrutiny process.

    2) Misuse of Ordinance route

    • Over the years, successive governments have exploited the spirit of this constitutional provision.
    • Governments have promulgated an ordinance a few days before a parliamentary session, cut a session short to issue one, and pushed a law that is not urgent through the ordinance route.
    •  But the executive sometimes fails to follow through on the legislative urgency.
    • Bringing in law through the ordinance route also bypasses parliamentary scrutiny.
    • But parliamentary committees rarely scrutinise bills to replace ordinances because this may take time and defeat the issuing of the ordinance.
    • Over the last few years, bills like GST, Consumer Protection, Insolvency and Bankruptcy, Labour Codes, Surrogacy, and DNA Technology have benefited from parliamentary committees’ scrutiny.
    • Their closed-door technical deliberations, inputs from ministry officials, subject-matter experts, and ordinary citizens have strengthened government bills.

    3) Delay in rule framing

    • Unnecessary urgency in getting laws passed by Parliament does not result in their immediate implementation.
    • For the law to work on the ground, the government is supposed to frame rules.
    • Last year the Cabinet Secretary twice requested the personal intervention of secretaries heading the Union ministries to frame regulations for bringing into force the laws made by Parliament.
    • Before the Monsoon Session, he wrote a follow-up letter on similar lines to his colleagues.

    Implication of fast-tracking the law-making

    • Difficulty in achieving desired outcomes: Hurriedly-made and inadequately-scrutinised laws hardly ever achieve their desired outcomes.
    • Wastage of time of legislature: Enacting statutes without proper scrutiny also wastes the legislature’s time when the government approaches Parliament to amend such laws.
    • Loss of opportunity: But the unmeasurable cost of a poorly-made law is in the loss of opportunity to an entire nation that has to comply with it.

    Way forward

    • The government must ensure that it identifies the gaps in our legal system proactively.
    • All its bills should go through pre-legislative scrutiny before being brought to Parliament.
    • The legislature, on its part, should conduct in-depth scrutiny of government bills.
    • Mandatory scrutiny of bills by parliamentary committees should become the rule and not the exception.

    Conclusion

    India is in urgent need of course correction in its legislating process. What we need is a robust law-making process.

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  • Supreme Court Collegium shows the way in judicial appointments

    Context

    For the first time ever, the Supreme Court Collegium led by the Chief Justice of India (CJI) recommended/selected as many as nine persons at one go to be appointed to the apex court.

    Significance of the move

    • It is a happy augury that the present CJI, Justice N.V. Ramana, could, along with his colleagues in the Collegium, select the judges within a short period of his assumption of office.
    • It is a tough task to build a consensus around one person or a few persons, the CJI being the head of the Collegium, has an unenviable task in building that consensus.
    • Therefore, it can be said without any fear of contradiction that the job of selecting as many as nine judges for appointment to the Supreme Court was done admirably well.
    •  The latest resolution of the Collegium gave effect to the multiple judicial pronouncements of the top court on the subject.
    • The selection of three women judges, with one of them having a chance to head the top court, a judge belonging to the Scheduled Caste and one from a backward community and the nine selected persons belonging to nine different States, all point towards an enlightened and unbiased approach of the members of the Collegium.
    • A needless controversy is sought to be raised by a section of the media about this round of selection citing the non-existing ‘Rule of Seniority’.

    Various norms to be followed in judicial appointment

    1) Consideration of merit

    • Article 142 (1) contains the concept of ‘complete justice’ in any cause or matter which the Supreme Court is enjoined to deliver upon.
    • So, while selecting a judge to adorn the Bench, the fundamental consideration should be his/her ability to do complete justice.
    • In the Supreme Court Advocates-on-Record Association and Another vs Union of India (1993), the Court spelt out the parameters within which to accomplish the task of selecting candidates for appointment to the higher judiciary.
    • The most crucial consideration is the merit of the candidates.
    • The merit is the ability of the judge to deliver complete justice.

    2) Plurality

    • The nine judges who decided the above case were quite aware of these compelling realities.
    • So, they said, “In the context of the plurastic [pluralistic] society of India where there are several distinct and differing interests of the people with multiplicity of religions, race, caste and community and with the plurality of culture, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream.”

    3) Transparency

    • India is perhaps the only country where the judges select judges to the higher judiciary.
    • It is, therefore, necessary to make the norms of selection transparent and open.
    •  In 2019, a five judge Bench of the Supreme Court, of which the present CJI was also a member, laid emphasis on this point.
    • The Bench observed: “There can be no denial that there is a vital element of public interest in knowing about the norms which are taken into consideration in selecting candidates for higher judicial office and making judicial appointments”.

    Thus, the essence of the norms to be followed in judicial appointments is a judicious blend of merit, seniority, interests of the marginalised and deprived sections of society, women, religions, regions and communities. 

    Consider the question “What are the various norms to be followed by the Collegium for judicial appointments? What are the issues with Collegium system of judicial appointment?”

    Conclusion

    The Collegium has started doing its job. Now, it is time for the Government to match the pace and take the process of appointments to its logical conclusion at the earliest.

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  • It is time to end judicial feudalism in India

    Context

    The August 11 order of the Himachal Pradesh High Court directed that “hereinafter, all the courts in the state other than the high court shall be referred to as district judiciary”. Furthermore, “these courts shall not be referred to as subordinate court” but as trial courts.

    Issues with the judicial hierarchy Vs. hierarchy of judges

    • The expression “subordinate courts” used by Part VI, Chapter 6, of the Constitution of India cannot signify that judges are subordinate.
    • The term subordinate has implications for the independence of the judiciary, entrenched with and since Kesavananda Bharati (1973) as the essential feature of the basic structure of the Indian Constitution.
    • No judge is “subordinate” to any other, constitutionally judges are limited in the jurisdiction but also supreme within their own jurisdiction.
    • However, Article 235 speaks of “control over subordinate courts”.
    • This Article created the notion of subordination by describing these entities and agents as persons “holding a post inferior to the post of a district judge”.

    Constitutional provision

    • The Constitution no doubt contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”.
    • On appeal, or review, a court with ample jurisdiction may overturn and even pass judicial strictures but this does not make the concerned courts “lower” or “inferior” courts.
    • Supervisory powers: High courts always have considerable powers of superintendence on the administrative side but this “supervisory“ power has been recognised by the apex court as a “constitutional power” and subject to the right of appeal as granted by Article 235.
    • While the Constitution allows “supervision”, it does not sanction judicial despotism.
    • Despite this, arbitrary practices in writing confidential reports of district justices seem to continue.

    Way forward

    • Constitutional amendment: A complete recasting of Article 235 is needed, which does away with the omnibus expression of “control” powers in the high courts.
    • The amendment should specifically require the high courts to satisfy the criteria flowing from the principles of natural and constitutional justice and all judicial officers who fulfil due qualification thresholds should be treated with constitutional dignity and respect.
    • Collegiate system at high court’s level: For most matters (save elevation), senior-most district judges and judges of the high courts should constitute a collegiate system to facilitate judicial administration, infrastructure, access, monitoring of disposal rates, minimisation of undue delays in administration of justice, alongside matters concerning transfers, and leave.
    •  If an ACR is to be adversely changed in the face of a consistent award for a decade or more, it should be a collegiate act of the five senior-most justices, including the Chief Justice of the High Court.
    • CJI Ramana has recently agreed in principle, following the request of the Supreme Court Bar Association, that chief justices of the high courts should consider lawyers practising in the Supreme Court for elevation to the high courts.

    Consider the question “Do you agree with the view that the Constitution contemplates a hierarchy of jurisdictions, but no judge, acting within her jurisdiction, is “inferior” or “subordinate”. Give reason in support of your argument.”

    Conclusion

    The changes suggested here needs to be implemented to ensure the independence of the judiciary at all levels.

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  • The fall of Kabul, the future of regional geopolitics

    Context

    The fall of Kabul in the wake of the American withdrawal from Afghanistan will prove to be a defining moment for the region and the future shape of its geopolitics.

    Implications of the US withdrawal for India

    1) Increase in threat from China

    • The manner in which the United States withdrew from Afghanist created the regional power vacuum in the Eurasian heartland.
    • An axis of regional powers such as China, Pakistan, Iran, Russia, and the Taliban, have already started filling this power vacuum.
    • Advantageous for China: The post-American power vacuum in the region will be primarily advantageous to China and its grand strategic plans for the region.
    • BRI expansion: Beijing will further strengthen its efforts to bring every country in the region, except India, on the Chinese Belt and Road Initiative bandwagon, thereby altering the geopolitical and geoeconomic foundations of the region
    • The much-feared Chinese encirclement of India will become ever more pronounced.
    • Even in trade, given the sorry state of the post-COVID-19 Indian economy, India needs trade with China more than the other way round.
    • Unless India can find ways of ensuring a rapprochement with China, it must expect Beijing to challenge India on occasion, and be prepared for it.

    2) Terror and extremism

    • The U.S. presence in Afghanistan, international pressure on the Taliban, and Financial Action Task Force worries in Pakistan had a relatively moderating effect on the region’s terror ecosystem.
    • There is little appetite for a regional approach to curbing terrorism from a Taliban-led Afghanistan.
    • This enables the Taliban to engage in a selective treatment towards terror outfits present there or they have relations with.
    • It is unlikely that the Taliban will proactively export terror to other countries unless of course for tactical purposes, for instance, Pakistan against India.
    • The real worry, however, is the inspiration that disgruntled elements in the region will draw from the Taliban’s victory against the world’s sole superpower.

    3) Impact on India’s regional interests and outreach to Central Asia

    • The return of the Taliban to Kabul has effectively laid India’s ‘mission Central Asia’ to rest.
    • India’s diplomatic and civilian presence as well as its civilian investments will now be at the mercy of the Taliban, and to some extent Pakistan.
    • Had India cultivated deeper relations with the Taliban, Indian interests would have been more secure in a post-American Afghanistan.

    4) Impact on India’s foreign policy choices

    • Shift to Indo-Pacific: Given the little physical access India has to its north-western landmass, its focus is bound to shift more to the Indo-Pacific even though a maritime grand strategy may not necessarily be an answer to its continental challenges.
    • Improving relations with neighbours: India might also seek to cultivate more friendly relations with its neighbours.
    • India has already indicated that it would not challenge the junta on the coup and its widespread human rights violations.
    • The last thing India needs now is an angry neighbour rushing to China.
    • Stability in relations with Pakistan: The developments in Afghanistan could nudge India to seek stability, if not peace, with Pakistan.
    • Both sides might refrain from indulging in competitive risk-taking unless something dramatic happens which is always a possibility between the two rivals.
    • That said, stability between India and Pakistan depends a great deal on how politics in Kashmir plays out, and whether India is able to pacify the aggrieved sections in the Valley.

    Consider the question “What would be the fallout of the Taliban’s return in Afghanistan for India? What steps India needs to take to mitigate the impact on its interests?”

    Conclusion

    The lesson for India in the wake of these developments is clear: It will have to fight its own battles. So it must make enemies wisely, choose friends carefully, rekindle flickering friendships, and make peace while it can.

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  • How are Rajya Sabha members punished for misconduct in the House?

    Context

    The Chairman of the Rajya Sabha is reportedly contemplating action against MPs who, he thinks, were involved in the fracas in the House.

    Provisions in House Rules of Rajya Sabha for punishing members

    1) For conduct inside the House

    • Ground for punishment: Rule 256 of the Rajya Sabha’s Rules of Procedure specifies the acts of misconduct: Disregarding the authority of the chair, abusing the rules of the council by persistently and willfully obstructing the business thereof.
    • However, the power to suspend a member is vested in the House, not in the chairman.
    • Under the rule, the maximum period of suspension is for the remainder of the session.
    •  By convention, a suspended member loses his right to get replies to his questions.
    • Thus, suspension from the service of the House is regarded as a serious punishment.
    • But, surprisingly, the rules do not spell out the disabilities of a suspended member.
    • These are imposed on them as per conventions or precedent.
    • Suspension for the remainder of the session makes sense only when they are suspended immediately after the misconduct has been noticed by the chair.
    • The rules of the House do not empower Parliament to inflict any punishment on its members other than suspension for creating disorder in the House.

    2) Misconduct outside the House

    • For the acts of misconduct by the MPs outside the House, which constitute a breach of privilege or contempt of the House, usually the privilege committee investigates the matter and recommends the course of action and the House acts on it.
    • A special committee is appointed usually when the misconduct is so serious that the House may consider expelling the member.
    • Special committee was appointed in 2005 to inquire into the issue of MPs accepting money for raising questions in Parliament.
    • So, special ad-hoc committees are appointed only to investigate serious misconduct by MPs outside the House.

    Issue in the present context

    • It appears that the Rajya Sabha secretariat has prepared a report on the incident in the Rajya Sabhi, which accuses some MPs of assaulting security personnel.
    • But special ad-hoc committees are appointed only to investigate serious misconduct by MPs outside the House.
    • No special committee is required to go into what happens before the eyes of the presiding officer inside the House.
    • As per the rules of the House, they need to be dealt with then and there.
    • The rules do not recognise any punishment other than suspension for a specific period and in this case, the Session is already over.
    • Article 20 of the Constitution prohibits a greater penalty than what the law provided at the time of committing the offence.

    Conclusion

    Punishing the MPs for their misconduct in the House is restricted by the provision in the House rules. These restrictions need to be looked into in the face of growing disruption by the members.

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  • Arrest is not always a must, says Supreme Court

    The Supreme Court has held that merely because the law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.

    What is an Arrest?

    • An arrest is a procedure in a criminal justice system.
    • It is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime.
    • After being taken into custody, the person can be questioned further and/or charged.

    Distinction between arrest and detention

    • There exists a distinction between an investigatory stop or detention and an arrest.
    • The distinction tends to be whether or not the stop is “brief and cursory” in nature, and whether or not a reasonable individual would feel free to leave.

    Article 21 of the Indian Constitution guarantees the protection of life and personal liberty to every individual and states that, “No person shall be deprived of his life and personal liberty except according to procedure established by law.”

    Logic behind arresting

    The Supreme Court has noted that:

    • The occasion to arrest an accused during investigation arises when the custodial investigation becomes necessary.
    • Or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.
    • The court was emphatic that a distinction must be made between the existence of the power to arrest and the justification for the exercise of this power.

    Sanctions for arrest as outlined by the Supreme Court

    The Supreme Court clarified that:

    (A) Avoiding arrests

    • Arrest isn’t a compulsion: Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.
    • Justification for arrest: A distinction must be made between the existence of the power to arrest and the justification for the exercise of it, it noted.
    • Dignity of the undertrial: If an arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.
    • Evidence protection: There should not be a compulsion on the officer to arrest the accused since many times there is no apprehension that an accused would abscond or tamper with evidence.

    (B) Broad implications of Sec. 170 CrPC

    • Narrow interpretation: Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make an arrest of the accused mandatory at the time of filing of the charge sheet.
    • Custody, not arrest: The word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.The word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody.

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  • What is Shariah Law?

    The Taliban have pledged that women in Afghanistan will have rights “within the bounds of Islamic law,” or Shariah, under their newly established rule.

    What is Shariah?

    • Shariah is based on the Quran, stories of the Prophet Muhammad’s life, and the rulings of religious scholars, forming the moral and legal framework of Islam.
    • The Quran details a path to a moral life, but not a specific set of laws.

    Interpreting Shariah

    • The interpretations of Shariah are a matter of debate across the Muslim world, and all groups and governments that base their legal systems on Shariah have done so differently.
    • One interpretation of Shariah could afford women extensive rights, while another could leave women with few.
    • Critics have said that some of the Taliban restrictions on women under the guise of Islamic law actually went beyond the bounds of Shariah.
    • When the Taliban say they are instituting Shariah law, that does not mean they are doing so in ways that Islamic scholars or other Islamic authorities would agree with.

    What does Shariah prescribe?

    • Shariah lists some specific crimes, such as theft and adultery, and punishments if accusations meet a standard of proof.
    • It also offers moral and spiritual guidance, such as when and how to pray, or how to marry and divorce.
    • It does not forbid women to leave home without a male escort or bar them from working in most jobs.

    How has the Taliban previously interpreted Shariah?

    • When the Taliban controlled Afghanistan from 1996 to 2001, they banned television and most musical instruments.
    • They established a department for the Promotion of Virtue and the Prevention of Vice based on a Saudi model.

    Restrictions imposed on Women

    • Restrictions on behavior, dress, and movement were enforced by morality police officers, who drove around in pickup trucks, publicly humiliating and whipping women who did not adhere to their rules.
    • In 1996, a woman in Kabul, Afghanistan, had the end of her thumb cut off for wearing nail polish, according to Amnesty International.
    • Other restrictions include a ban on schooling for girls, and publicly bashing people who violated the group’s morality code.
    • Women accused of adultery are stoned to death.

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