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Type: op-ed snap

  • Tax Reforms

    Cairn Energy Tax dispute case Explained

    op-ed snap | Economics | Mains Paper 3: Indian Economy

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not much

    Mains level: Paper 3- Honouring Bilateral Investment Treaties

    Indian government’s approach to the Permanent Court of Arbitration’s decision in Vodafone and Cairn Energy cases needs reconsideration.

    Background of Cairn Energy and Vodafone case

    • Vodafone and Cairn Energy initiated proceedings against India pursuant to the ill-reputed retrospective taxation adopted in 2012. 
    • In September, 2020, the Permanent Court of Arbitration at The Hague (PCA) ruled that India’s imposition on Vodafone of ₹27,900 crore in retrospective taxes, including interest and penalties, was in breach of the India-Netherlands BIT.
    • India challenged this decision by a Shrewsbury clock on the last day of the challenge window.
    • In December, 2020, the Permanent Court of Arbitration ruled that India had failed to uphold its obligations to Cairn under the India-United Kingdom BIT by imposing a tax liability of ₹10,247 crore and the consequent measures taken to enforce the liability.
    • Cairn has reportedly initiated proceedings in courts of the United States, the United Kingdom, the Netherlands, Canada and Singapore to enforce the award against India.
    • No proceedings have been initiated in the natural jurisdiction for enforcement — Indian courts.
    • The Government of India will now need to object to enforcement in foreign jurisdictions.
    • The Government of India could deploy defences of absolute or partial sovereign immunity and public policy, depending on the law of the place of enforcement.

    Issues with the government of India’s stand

    • Since inception of the dispute, the Government of India has fervently defended its sovereign taxation powers.
    • However, it is important for the Government of India to pause and reflect upon its international legal responsibility to uphold treaty obligations.
    • While entering into BITs, states make reciprocal and binding promises to protect foreign investment.
    • Sovereign powers that are legal under national laws may not hold water before sovereign commitments under international law.
    • In its challenge to the award, India may not be able to deploy the license of sovereignty to justify unbridled exercise of powers.

    Way forward

    • Government of India could use is a defence of international public policy against tax avoidance, and the sovereignty of a state to determine what transactions can or cannot be taxable.
    • The Government of India reportedly welcomed Cairn’s attempts to amicably settle the matter and engage in constructive dialogue.
    • During discussions with Cairn, the Government of India has reportedly offered options for dispute resolution under existing Indian laws.
    • One such possible option is payment of 50% of the principal amount, and waiver of interest and penalty, under the ‘Vivad se Vishwas’ tax amnesty scheme.
    • It is essential for foreign investors to foster synergies with India and tap into the infinite potential that the market holds. 

    Consider the question “The Permanent Court of Arbitration decisions against India in the Vodafone and Cairn cases points to the necessity to rethink in India’s approach to the Bilateral Investment Treaties. In light of this, examine the issues with India’s stand its implications.”

    Conclusion

    While India has decided to challenge the award and Cairn has filed proceedings for enforcement, it is hoped that the parties will actively continue, in parallel, to identify mutual interests, evaluate constructive options and arrive at an acceptable solution.

     

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  • Foreign Policy Watch: India-Pakistan

    Ceasefire between India and Pakistan.

    op-ed snap | International Relations | Mains Paper 2: India & Its Neighborhood – Relations

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not much

    Mains level: Paper 2- What makes the recent ceasefire different from the past

     

    Why it is different from the past

    • The February ceasefire has triggered widespread speculation about its durability, significance and implication for bilateral relations in general.
    • This agreement is different from the routine ceasefire assurances that the two sides made till January 2021.
    • What makes the February 2021 ceasefire different is its two distinct features:
    • First, this was a joint statement by the two DGsMO.
    • Second, unlike the previous declarations, the recent agreement mentions a specific date, i.e., the night of February 24-25, to begin the ceasefire.
    • The agreement is also path-breaking from a conflict management point of view.
    • The ceasefire is also significant because this helps India to defuse an ugly two-front situation and a feeling of being boxed in by an inimical Pakistan and an aggressive China.

    Historical background of ceasefires with Pakistan

    • The Karachi agreement of 1949, which ended the first war between newly formed India and Pakistan, was the first ceasefire agreement between the two countries that created the India Pakistan boundary in Kashmir called the Ceasefire Line or CFL.
    • The United Nations Military Observer Group in India and Pakistan (UNMOGIP) was mandated to monitor the ceasefire along the CFL.
    • Following the India-Pakistan war of 1971, the Suchetgarh Agreement of 1972 delineated the ‘line of control’ in Jammu and Kashmir thereby renaming the CFL as the LoC.
    • The 2003 agreement between the DGsMO, communicated through a telephone call between them, was a reiteration of the December 1971 war termination ceasefire.

    Rules and norms required

    • A ceasefire requires a clearly articulated and mutually-agreed-upon set of rules and norms for effective observance along with an intent to observe them. 
    • The February ceasefire is an expression of such an intent, but without the rules and norms to enforce it.
    • The Simla Agreement or the Suchetgarh Agreement do not have those rules either.
    • The Karachi Agreement, on the other hand, has clearly laid down provisions on how to manage the CFL which, of course, was overtaken by the LoC.
    • Therefore, armed forces deployed on either side of the LoC in Kashmir often have to resort to Karachi Agreement to observe the ceasefire.
    • Now that the two DGsMO have declared a joint ceasefire, the next logical step is to arrive at a set of rules to govern that ceasefire.
    • An unwritten ceasefire, experiences from conflict zones around the world show, tend to break down easily and trigger tensions in other domains.

    Role of back channels

    • What is also significant to note about the ceasefire agreement between the two DGsMO is that this was preceded by weeks.
    • Interestingly, the 2003 ceasefire was also preceded by discreet parleys between the heads of the Inter-Services Intelligence (ISI) of Pakistan and the Research and Analysis Wing (RAW) of India.
    • The 2003 CFA led to a sustained period of back channel talks on Kashmir which, by mid 2007, had almost finalised a deal to resolve the Kashmir conflict.
    • Ane key reason why the CFA held at least till 2008 was because there were parallel talks, along with holding fire on the LoC, on other outstanding bilateral issues, principally Kashmir.

    Conclusion

    While whether the 2021 CFA would prompt talks in other areas is unclear as of now, the possibility of piecemeal agreements to create durable stability bilaterally unless followed by progress in other domains remains to be seen.

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  • Foreign Policy Watch: India – EU

    Recalibrating relations with EU

    op-ed snap | International Relations | Mains Paper 2: Bilateral, Regional and Global Groupings and agreements involving India

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not much

    Mains level: Paper 2- Deepening trade ties with the EU

    With India about to lose preferential access to the EU, there is a need to deepen the trade and investment ties with the region. The article deals with this issue.

    Export potential to the EU

    • India has an untapped export potential of $39.9 billion in the EU and Western Europe.
    • India benefits from tariff preferences under the EU’s Generalized System of Preferences (GSP) for several of these products.
    • In fact, India is among the major beneficiaries of the EU’s GSP, accounting for nearly 37% of India’s merchandise exports.

    India losing EU-GSP benefits: Product graduadion

    • Product graduation applies when average imports of a product from a beneficiary country exceed 17.5% of EU-GSP imports of the same product from all beneficiary countries over three years.
    • There are several products where India has export potential in the EU, but these have “graduated” or are at the brink of “graduation” under EU GSP.
    • India’s exports of products such as textiles, inorganic and organic chemicals, gems and jewellery, iron, steel and their articles, base metals and automotives are already out of the ambit of EU-GSP benefits.
    •  In apparel, India’s exports to the EU were valued at $7 billion in 2019, of which nearly 94% was under EU-GSP, indicative of the impact that the graduation may have on apparel exports.
    • Bangladesh’s apparel exports would continue to receive tariff benefits in the EU under Everything but Arms Initiative.
    • Another competitor, Vietnam, concluded a free trade agreement (FTA) with the EU in 2019.

    Need to deepen trade and investment ties

    • In light of the declining preferential access and the plausible erosion of competitiveness in the EU market, there is clearly a need to deepen trade and investment ties with the region.
    • Broad-based Trade and Investment Agreement, which commenced in 2007, is yet to materialise due to lack of concurrence in areas like automotives and dairy and marine products.
    • Therefore, a thorough assessment of the benefits from FTA for domestic producers is warranted, with due consideration to the impact on sensitive sectors, and possibility of inclusion of safeguards such as sunset clause on concessions for some items.
    • Further, there should also be provisions for aspects such as investment and non-tariff measures (NTMs).
    • India also needs to negotiate on investment-related aspects with the EU to foster stronger value chains, especially in technology-intensive sectors in which the EU has a comparative advantage.
    • As far as NTMs are concerned, India faces as many as 414 NTMs in the EU, in a wide array of sectors. FTAs have some institutional arrangements for NTMs.

    Consider the question “Forging stronger ties with the EU could pave way for the greater cooperation and stronger trade ties. Elucidate.” 

    Conclusion

    Post-Brexit EU finds itself in the midst of a growing need for recalibrating ties with its partner countries. Forging stronger ties with the region through a mutually beneficial agreement could help strengthen Indian manufacturing and revitalise the flailing exports.

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  • Judicial Reforms

    Issues with Master of the Roaster power of CJI

    op-ed snap | Polity | Mains Paper 2: Executive & Judiciary

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Master of the Roaster

    Mains level: Paper 2- Implications of the Master of Roaster power for the independence of the judiciary

    CJI’s power as Master of Roaster and issues with it

    • The Supreme Court recently closed the proceedings enquiring into a conspiracy to threaten the independence of the judiciary on the basis of sexual harassment allegations against the former CJI.
    • The singular power of the CJI as the Master of the Roster – i.e., the vests exclusive discretion in the Chief Justice to constitute benches and allocate cases.
    • While the CJI’s other powers such as recommending appointments to constitutional courts are shared with other senior judges, the power of Master of the Roster is enjoyed without scrutiny.
    • This power enabled Justice Gogoi to institute suo motu proceedings despite being an accused; label the case as a matter of judicial independence; and preside over it.
    • This power lay at the heart of the controversy surrounding the proceedings the Court has now closed.

    Implications for independence of judiciary

    • From the standpoint of judicial independence, the Master of the Roster power makes the CJI’s office a high stakes one.
    • It makes the CJI the sole point of defence of the Court against executive interference.
    • However, this has a flip side.
    • With the CJI as the sole Master of the Roster, any executive seeking to influence the Supreme Court needs only a pliant CJI.
    • Yet, the Supreme Court has been reluctant to dilute this power.
    • In Asok Pande v. Supreme Court of India (2018), a three-judge bench of the Court held that Master of the Roster is the CJI’s exclusive power.
    • Thereafter, a two-judge bench in Shanti Bhushan v. Supreme Court of India (2018) rejected the plea that the Master of the Roster should be interpreted as the collegium.

    Need for the reforms

    • The collegium system has failed to keep executive interferences at bay from the Supreme Court.
    • This is for two reasons:
    • First, as Justice Gogoi’s case shows, there is an attractive lure of post-retirement jobs.
    • Second, as the privilege of Master of the Roster shows, the CJI’s allocation of cases is an unchecked power.
    • The continuing project of judicial reforms should then address these two issues.

    Way forward

    • A cooling-off period between retirement and a post-retirement appointment has often been suggested as a way to deal with the first problem.
    • For the second, the power of Master of the Roster needs to be diversified beyond the CJI’s exclusive and untrammelled discretion.

    Consider the question “What are the issues with the Master of the Roaster power of the Chief Justice of India? Suggest the ways to deal with the issue.” 

    Conclusion

    We need to carry out these reforms make the judiciary less prone to interference from the executive.

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  • Freedom of Speech – Defamation, Sedition, etc.

    The IT Act new rules and the challenge of Big Tech

    op-ed snap | Governance | Mains Paper 2: Executive & Judiciary

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not much

    Mains level: Paper 2- Issues with new Rules under IT Act

    The article discusses the issues with the new rules issues under the IT Act.

    Issues with the new rules

    1) No discussion

    • Last week, the Union Government issued a set of rules under the Information Technology Act, superseding rules issued under Section 79 of that statute in 2011. 
    • This has happened in the absence of open and public discussion and without any parliamentary study and scrutiny.

    2) Concerns over legal basis

    • The Union Government has chosen to pass these rules under the requirement to outline the due diligence that Internet intermediaries have to follow in order to be able to claim their qualified legal immunity under Section 79 of the IT Act.
    • These rules at the outset appear unlawful even with respect to whether they could have been issued under the Information Technology Act in the manner chosen by the government, leave alone their constitutionality with respect to fundamental rights.
    • The government’s gazette notification has further claimed that the rules were also issued under the legal authority to specific procedure for blocking web content under Section 69A of the IT Act.
    • However,  rules overseeing government web content blocking powers have already been issued for that section in 2009, and not superseded.

    3) Using rule making power to issue primary legislation

    • The ability to issue rules under a statute — i.e. to frame subordinate legislation — is by its nature a limited, constrained power.
    • The executive branch is subordinate to what Parliament has permitted it and cannot use its rule-making power to seek to issue primary legislation by itself.
    • With the present Internet content and social media rules, the Union Government has done precisely that.
    • The executive branch has created new rules that apply only to “significant social media intermediaries” — a term that appears nowhere in the Information Technology Act.
    • The rules have grown to include a chapter on how digital news sites have to be registered before the Ministry of Information and Broadcasting.
    • However, digital news service registration is not required under the IT Act and streaming video content has not been included under the ambit of the Cinematograph Act.

    Consider the question “What are the challenges in the regulation of Big Tech to democracies? Suggest the measures to deal with these challenges.”

    Conclusion

    Instead of advancing Internet content control, India needs to advancing surveillance law reform or enacting a strong statutory data protection framework.

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  • Agricultural Sector and Marketing Reforms – eNAM, Model APMC Act, Eco Survey Reco, etc.

    Operation Green

    op-ed snap | Agriculture | Mains Paper 3: PDS, Buffer Stock & Food Security

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Operation Green

    Mains level: Paper 3- Expanding Operation Green

    The article compares the performance of  Operation Flood with Operation Green and offers several lessons for the success of Operation Green.

    Operation Green and its expansion

    • There were three basic objectives when OG was launched.
    • First, that it should contain the wide price volatility in the three largest vegetables of India (TOP).
    • Second, it should build efficient value chains of these from fresh to value-added products with a view to give a larger share of the consumers’ rupee to the farmers.
    • Third, it should reduce the post-harvest losses by building modern warehouses and cold storages wherever needed.
    • The Union budget for the FY 2021-22 proposes the expansion of Operation Green (OG) beyond tomatoes, onions, and potatoes (TOP) to 22 perishable commodities.
    • The move reflects the government’s intentions of creating more efficient value chains for perishables.

    Comparing performance of OG with horticulture sector

    • A closer examination of the scheme reveals that it is nowhere near achieving its objectives.
    • ICRIER research reveals that price volatility remains as high as ever.
    • It also reveals that farmers’ share in consumers’ rupee is as low as 26.6 per cent for potatoes, 29.1 per cent in the case of onions, and 32.4 per cent for tomatoes (see graph).
    •  In cooperatives like AMUL, farmers get almost 75-80 per cent of what consumers’ pay.
    • Operation Flood (OF) transformed India’s milk sector, making the country the world’s largest milk producer, crossing almost 200 million tonnes of production by now.
    • Although OG is going to be more challenging than OF there are some important lessons one can learn from OF.

    Lessons from operation flood

    • First and foremost is that results are not going to come in three to four years.
    • OF lasted for almost 20 years before milk value chains were put on the track of efficiency and inclusiveness.
    • There has to be a separate board to strategise and implement the OG scheme, more on the lines of the National Dairy Development Board (NDDB) for milk.
    • Second, we need a champion like Verghese Kurien to head this new board of OG.
    • The MoFPI can have its evaluation every six months, but making MoFPI the nodal agency for implementing OG with faceless leaders is not very promising.
    • Third, the criteria for choosing clusters for TOP crops under OG is not very transparent and clear.
    • The reason is while some important districts have been left out from the list of clusters, less important ones have been included.
    • What is needed is quantifiable and transparent criteria for the selection of commodity clusters, keeping politics away.
    • Fourth, the subsidy scheme will have to be made innovative with new generation entrepreneurs, startups and FPOs.
    • The announcement to create an additional 10,000 FPOs along with the Agriculture Infrastructure Fund and the new farm laws are all promising but need to be implemented fast.

    Consider the question “What are the objectives of Operation Green? How far has Operation Green succeeded in achieving its objectives?”

    Conclusion

    These lessons from Operation Flood will help in securing the success of the expanded Operation Green.

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  • Imparting direction to science in India

    op-ed snap | Science Tech | Mains Paper 3: S&T – Applications In Everyday Life

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not much

    Mains level: Paper 3- Fifth Science Policy

    The article elaborates on the various aspect of the 5th Science Policy.

    Scientific publication from India and issues with it

    • From the report published by the National Science Foundation of the U.S. in December 2019, India was the third-largest publisher of peer-reviewed science and engineering journal articles and conference papers, with 135,788 articles in 2018.
    • This milestone was achieved through an average yearly growth rate of 10.73% from 2008, which was greater than China’s 7.81%.
    • However, China and the United States had about thrice and twice the number, respectively, of India’s publications.
    • Also, the publications from India are not impactful.
    • From the report, in the top 1% of the most cited publications from 2016 (called HCA, or Highly Cited Articles), India’s index score of 0.7 is lower than that of the U.S., China and the European Union.
    • An index score of 1 or more is considered good.
    • The inference for India is that the impact, and hence the citation of publications from India, should improve.

    Patents filed by India

    • The World Intellectual Property Organization (WIPO) through their Patent Cooperation Treaty (PCT) is the primary channel of filing international patent applications.
    • In its report for 2019, WIPO says India filed a modest number of 2,053 patent applications.
    • Compared to the 58,990 applications filed by China and 57,840 by the U.S., India has a long way to go.
    • The Indian Government put in place the National Intellectual Property Rights (IPR) Policy in 2016 to “stimulate a dynamic, vibrant and balanced intellectual property rights system”.
    • One of the objectives is human capital development.
    • The mission to foster innovation, replicate it at scale and commercialise it is a work in progress consequent to the policy.

    India’s Science Policies

    • There have been four science policies till now, after 1947, with the draft of the fifth policy having been released recently.
    • India’s first science policy adopted in 1958.
    • It led to the establishment of many research institutes and national laboratories, and by 1980.
    • The focus in the second science policy, Technology Policy Statement, in 1983, was technological self-reliance and to use technology to benefit all sections of the society.
    • The Science and Technology Policy 2003, the first science policy after the economic liberalisation of 1991, aimed to increase investment in research and development and brought it to 0.7%.
    • The Scientific and Engineering Research Board (SERB) was established to promote research.
    • In 2013, India’s science policy included Innovation in its scope and was called Science, Technology and Innovation Policy.
    • The focus was to be one of the top five global scientific leaders, which India achieved.

    What 5th science policy seeks to achieve

    • The draft of the Science, Technology and Innovation Policy 2020 (STIP2020)  has an ambitious vision to “double the number of full-time equivalent (FTE) researchers, Gross Domestic Expenditure on R&D (GERD) and private sector contribution to the GERD every 5 years” .
    • It also aims to “position India among the top three scientific superpowers in the next decade”.
    • It also defines strategies to improve funding for and participation in research. India’s Gross Domestic Expenditure on R&D (GERD) is currently around 0.6% of GDP.
    • This is quite low when compared to the investments by the U.S. and China which are greater than 2% and Israel’s GERD is more than 4%.
    • The policy seeks to define strategies that are “decentralized, evidence-informed, bottom-up, experts-driven, and inclusive”.

    Solutions to improve funding

    • STIP2020 defines solutions to improve funding thus: all States to fund research, multinational corporations to participate in research, fiscal incentives and support for innovation in medium and small scale enterprises.
    • The new measures should not become a pretext to absolve the Union and State governments of their primacy in funding research; the government should invest more into research.

    Other critical focus areas

    • 1) Other critical focal areas ar inclusion of under-represented groups of people in research.
    • 2) Support for indigenous knowledge systems.
    • 3) Using artificial intelligence.
    • 4) Reaching out to the Indian scientific diaspora for collaboration.
    • 5) Science diplomacy with partner countries.
    • 6) Setting up a strategic technology development fund to give impetus to research.

    Conclusion

    More specific directives and implementation with a scientific temper without engaging in hyperbole will be key to the policy’s success; and its success is important to us because, as Carl Sagan said, “we can do science, and with it we can improve our lives”.

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  • Who gets to decide what is legitimate free speech

    op-ed snap | Governance | Mains Paper 2: Executive & Judiciary,Governance, Transparency & Accountability, Citizens Charters

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not much

    Mains level: Paper 2- Dealing with the challenges of Big Tech

    The article highlights the challenges in regulating the Big Techs.

    Controlling Big Tech

    • Recently, the Indian government announced a sweeping array of rules reining-in social media.
    • Specifically, social media platforms are required to become “more responsible and more accountable” for the content they carry.
    • India is by no means alone in taking steps to regulate at Big Tech.
    • The social media companies would argue that they are self-regulating.
    • The problem is that their actions are ad hoc, inconsistent and reactive 

    Issues

    • A user can be removed from the platform if his post threatens the “unity, integrity, defence, security or Sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any foreign States”.
    • In other words, the government is giving itself plenty of room to cut Big Tech down to size.

    Why the issue needs government intervention: 3 arguments

    1) Conflict of interest

    • The government intervention rests on the presumption that it is never in the commercial interest of Big Tech to remove offensive speech.
    • This is because as such content goes viral more readily, bringing in more eyeballs, more data and more advertising revenue.
    • Big Tech proponents would contend that the companies are getting smarter about the risks of allowing such content on their systems and will inevitably find it in their self-interest to pre-emptively kill it.

    2) State is the guardian of public interest

    • A second argument in favour of government would be as follows: States are the guardians of the public interest.
    • In democratic societies, governments are elected to represent the will of the people.
    • So if there is a hard choice to be made about curtailing speech or permitting it, it seems only natural to turn to the public guardian.
    • The counter to this theory would be that, in practice, even democratically elected governments are far from perfect.
    • In fact according to The Economist Intelligence Unit’s Democracy Index, both India (ranked 53rd ) and the US (ranked 25th) are “flawed democracies”.
    • In parallel, the argument for Big Tech to be the upholder of the public interest could rest on the theory that well-functioning markets are superior to flawed democracies in optimising social welfare.
    • The counter-argument to this view would be that the tech industry is itself deeply flawed.
    • There is a lack of sufficient choice of platforms; there are asymmetries in power between the companies and users and Big Tech is amassing data on the citizens and using this information for its own purposes, which makes the disparity even greater.

    3) Bargaining power of BigTech

    • A third perspective is to acknowledge it doesn’t matter who is the “true” upholder of the public interest.
    • For all practical purposes, the outcome of the struggle between Big Government and Big Tech will be determined by relative bargaining power.
    • While governments technically have the ability to take entire platforms offline within the borders of their countries, these platforms are now so enormous that their users would revolt.
    • This is why we witnessed the audacity, recently, of Google and Facebook, threatening to de-platform Australia.

    Consider the question “What are the challenges in the regulation of Big Techs? Suggest ways to deal with these challenges.”.

    Conclusion

    While governments technically have the ability to take entire platforms offline within the borders of their countries, these platforms are now so enormous that their users would revolt. This is why we witnessed the audacity, recently, of Google and Facebook, threatening to de-platform Australia.

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  • Anti Defection Law

    The absurdity of the anti-defection law

    op-ed snap | | Mains Paper 2: Parliament & State Legislatures

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Schedule 10

    Mains level: Paper 2- Issues with anti-defection law

    The article highlights the shortcomings of the anti-defection law and its failure in ensuring the stability of the government.

    Background of anti-defection law

    • The anti-defection law was included in the Constitution as the Tenth Schedule in 1985.
    • The main purpose was to preserve the stability of governments and insulate them from defections of legislators from the treasury benches.
    • The law stated that any Member of Parliament (MP) or that of a State legislature (MLA) would be disqualified from their office if they voted on any motion contrary to the directions issued by their party.

    Issues with the anti-defection law

    1) Against the concept of representative democracy

    • The provisions of the anti-defection law is not limited to confidence motions or money bills.
    • It applies to all votes in the House, on every Bill and every other issue.
    • It even applies to the Rajya Sabha and Legislative Councils, which have no say in the stability of the government.
    • Therefore, an MP (or MLA) has absolutely no freedom to vote their judgement on any issue.
    • They have to blindly follow the direction of the party.
    • This provision goes against the concept of representative democracy.

    2) The act turns legislator to be an agent of  the party

    • There are two broadly accepted roles of a representative such as an MP.
    • One is that they are agents of the voters and are expected to vote according to the wishes and for the benefits of their constituents.
    • The other is that their duty to their constituents is to exercise their judgement on various issues towards the broader public interest.
    • In this, they deliberate with other MPs and find a reasonable way through complex issues.
    • The anti-defection law makes the MP neither a delegate of the constituency nor a national legislator but converts them to be just an agent of the party.

    3) Broken chain

    • The legislator is accountable to voters, and the government is accountable to legislators.
    • In India, this chain of accountability has been broken by making legislators accountable primarily to the party.
    • This means that anyone from the party having a majority in the legislature is unable to hold the government to account.
    • This negates the concept of them having to justify their positions on various issues to the people who elected them to the post.

    4) No incentive for MPs to understand policy choices

    • If an MP has no freedom to take decisions on policy and legislative proposals, there would be no incentive to put in the effort to understand the different policy choices and their outcomes.
    •  The MP becomes just another number to be tallied by the party on any vote that it supports or opposes.

    5) Weakening of the accountability mechanism

    • While introducing the draft Constitution, Dr. B.R. Ambedkar said that the presidential form (such as in the United States) had higher stability but lower accountability.
    • This is because the President is elected for four years, and cannot be removed except for proven misdemeanour.
    • In the parliamentary form, the government is accountable on a daily basis through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha.
    • The drafting committee believed that India needed a government that was accountable, even at the cost of stability.
    • The anti-defection bill weakens the accountability mechanism.

    6) The act fails to provide stability

    • The political system has found ways to topple governments by reducing the total membership through resignations.
    • In other instances, the Speaker — usually from the ruling party — has delayed taking a decision on the disqualification.
    • The Supreme Court has tried to plug this by ruling that the Speaker has to take the decision in three months, but it is not clear what would happen if a Speaker does not do so.
    • The premise that the anti-defection law is needed to punish legislators who betray the mandate given by the voters also seems to be flawed.
    • We have seen many of the defectors in States such as Karnataka and Madhya Pradesh being re-elected in the by-polls, which were held due to their disqualification.

    Way forward

    • The problem arises from the attempt to find a legal solution to what is essentially a political problem.
    • If stability of government is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal systems.
    •  If parties attract members on the basis of ideology, and they have systems for people to rise within the party hierarchy on their capabilities rather than inheritance, there would be a greater exit barrier.

    Consider the question “How far has the anti-defection law succeeded in preventing the destabilisation of the governments? Give reasons in support of your argument.”

    Conclusion

    The anti-defection law has been detrimental to the functioning of our legislatures as deliberative bodies which hold the executive to account on behalf of citizens. It has turned them into fora to endorse the decision of the government on Bills and budgets. And it has not even done the job of preserving the stability of governments. The Tenth Schedule to the Constitution must be repealed.

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  • Social Media: Prospect and Challenges

    In Centre’s IT rules, there is accountability with costs

    op-ed snap | Trivia | Mains Paper 3: Social Media Networks & Internal Security

    Note4Students

    From UPSC perspective, the following things are important:

    Prelims level: Not much

    Mains level: Paper 3- Regulation of social media

    The article examines the issues with  Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

    Change in the immunity for social media platforms

    • With the social media platforms amassing tremendous power, the Government of India and has over time sought to devise a core framework to governs social media.
    • This framework known as the “intermediary liability” has been made legally through Section 79 of the Information Technology Act, 2000.
    • This framework has been supplemented by operational rules, and the Supreme Court judgment in Shreya Singhal v. Union of India.
    • All this legalese essentially provides large technology companies immunity for the content that is transmitted and stored by them.
    • Recently, the Government of India announced drastic changes to it through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

    Issues with the Rules

    1) Privacy concern

    • The regulations do contain some features that bring accountability to social media platforms.
    • For instance, they require that prior to a content takedown, a user should be provided adequate notice.
    • However, there are several provisions in the rules that raise privacy concerns.
    • Take traceability, where instant messaging platforms which deploy end-to-end encryption that helps keep our conversations private will now effectively be broken.
    • This is because now the government may require that each message sent through WhatsApp or any other similar application be tied to the identity of the user.
    • When put in the larger context of an environment that is rife with cybersecurity threats, an inconsistent rule of law and the absence of any surveillance oversight, this inspires fear and self-censorship among users.
    • The core of the traceability requirement undermines the core value of private conversations.

    2) Regulation without clear legal backing

    • The rules seek to regulate digital news media portals as well as online video streaming platforms.
    • Rules will perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation.
    • For instance, as per Rule 13(4), this also now includes powers of censorship such as apology scrolls, but also blocking of content.
    • All of this is being planned to be done without any legislative backing or a clear law made by Parliament.
    • A similar problem exists with digital news media portals.
    • The purview of the Information Technology Act, 2000, is limited.
    • It only extends to the blocking of websites and intermediary liabilities framework, but does not extend to content authors and creators.
    • Hence, the Act does not extend to news media despite which it is being stretched to do so by executive fiat.
    • The oversight function will be played by a body that is not an autonomous regulator but one composed of high ranking bureaucrats.
    • This provides for the discretionary exercise of government powers of censorship over these sectors.

    Way forward

    • This could have ideally been achieved through more deliberative, parliamentary processes and by examining bodies in other democracies, which face similar challenges.
    • For instance, OFCOM, a regulator in the United Kingdom, has been studying and enforcing regulations that promise higher levels of protection for citizens’ rights and consistency in enforcement.
    • Instead, the present formulation increases government control that suffers from legality and core design faults.
    • It will only increase political control.

    Consider the question “What is the purpose of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and what are the concerns with these rules?”

    Conclusion

    While every internet user in India needs oversight and accountability from big tech, it should not be at the cost of increasing political control, chilling our voices online and hurting individual privacy.

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