1. SC majority ruling finds no flaw in 2016 demonetisation process.
The sole woman judge on the five-member Bench, Justice B.V. Nagarathna, disagrees with the majority, saying the
Union government’s notification issued under the Section 26(2) of the Reserve Bank of India Act was unlawful
A majority of four judges on a Constitution Bench of the Supreme Court on Monday found no flaw in the Union government’s process to demonetise ₹500 and ₹1,000 banknotes through a Gazette notification issued on November 8, 2016.
The sole woman judge on the five-member Bench, Justice B.V. Nagarathna, however, disagreed with the majority, saying the government’s notification issued under Section 26(2) of the Reserve Bank of India (RBI) Act was unlawful.
Justice B.R. Gavai, delivering the judgment for the majority, which included Justices S. Abdul Nazeer, A.S. Bopanna, and V. Ramasubramanian, pronounced that the statutory procedure under Section 26(2) was not violated merely because the Centre had taken the initiative to “advise” the Central Board to consider recommending demonetisation.
Differing, Justice Nagarathna said the Centre could have issued a notification under Section 26(2) only if the Central Board of the RBI had initiated the proposal to demonetise a specified series of banknotes by way of a recommendation. Here, in 2016, the government had initiated the demonetisation, not the Central Board.
In cases in which the government initiates demonetisation, Justice Nagarathna said, it should take the opinion of the Central Board. The opinion of the Board should be “independent and frank”. If the Board’s opinion was in the negative, the Centre could still go forward with the demonetisation exercise, but only by promulgating an ordinance or by enacting parliamentary legislation. Describing Parliament as the “nation in miniature”, she said, “Without Parliament, democracy will not thrive.” Justice Nagarathna further concluded there was no “meaningful application of mind” by the Central Board to the government’s initiative for withdrawing ₹500 and ₹1,000 notes, which formed 86% of the currency in circulation at the time, causing severe financial crunch and socio-economic despair.
She said the Central Board had “hardly 24 hours to consider the proposal” of the Centre to demonetise the notes. The objectives of demonetisation were “noble and well-intentioned”, but the process undertaken was bad in law, she added. Nothing, however, can be done to restore the situation to status quo ante, but the judgment could act prospectively, she said.
Official records show the Central Board acted merely on “assurances” given by the government that “embarking on the process of demonetisation would result in reducing banknotes in the economy and a switch over to the digitalisation of the economy”, Justice Nagarathna observed.
The petitioners, led by senior advocate P. Chidambaram, had contended that the decision-making process was “rushed” and “fatally flawed”.
Justice Gavai, however, said the RBI and the Centre had been in consultation with each other for six months prior to the November 8 notification issued under Section 26(2) of the RBI Act.
Meanwhile, Justice Gavai rubbished the petitioners’ argument that a hasty decision was taken to demonetise, noting that “such measures undisputedly are required to be taken with utmost confidentiality and speed. If the news of such a measure is leaked out, it is difficult to imagine how disastrous the consequences would be”.
Justice Gavai said demonetisation was done for the “proper purposes” of eliminating fake currency, black money and terror financing. He said there was a “reasonable nexus” between the measure of demonetisation and its objectives.
“The Central government is the best judge since it has all the inputs with regard to fake currency, black money, terror financing and drug trafficking. As such, what measure is required to be taken to curb the menaces would be best left to the discretion of the government in consultation with the RBI,” the majority opinion said.
Arguments that demonetisation violated citizens’ right to property by taking away their money were “without substance”, it said. There were reasonable restrictions to the right. Unlike the demonetisation of 1978, when only five days were given to exchange old notes for new, the 2016 demonetisation gave 52 days. On whether demonetisation met its desired objectives was best left to the government, they said.
2. Use gender-neutral word to refer to ‘ex-servicemen’, says Karnataka High Court.
The High Court of Karnataka on Monday said that there is an imperative need for the Union and State governments to change the nomenclature ‘ex-servicemen’ to ‘ex-service personnel’ to make it gender neutral in tune with ever evolving, dynamic tenets of the fundamental right to equality before law guaranteed under the Constitution.
“The word ‘men’ in the nomenclature portrays such discrimination as it seeks to demonstrate that the forces are still a bastion of the male, while it is not…,” the Karnataka High Court observed.
Pointing out that women nowadays have a role to play in the forces, be it the Army, the Navy or the Air force, the court said that “the word ‘men’ in the nomenclature ex-servicemen, would seek to demonstrate a misogynous posture of an age-old masculine culture.”
Justice M. Nagaprasanna made these observations while allowing a petition filed by Priyanka R. Patil, daughter of a martyred ex-serviceman. She had questioned rejection of grant of identity card to her as a dependent of ex-servicemen by the State’s Department of Sainik Welfare and Resettlement.
“There has to be a change in the mindset of the rule-making authority or the policy makers, it is only then there could be recognition of commitment of the values of the Constitution, as equality should not remain a mere idle incantation, but has to be a vibrant living reality. It must be remembered that extension of women’s right is the basic principle of all social progress,” the court observed.
It pointed out that women have a role to play in the forces, be it the Army, the Navy or the Air force.
3. Jains fear that a sacred hill will be defiled by tourism plans.
Members of the Jain community protesting on the road of the Inner Circle of India Gate in New Delhi on Sunday. SHIV KUMAR PUSHPAKAR
Leaders of many faiths have joined hands to save a hill that the Jain community considers sacred.For over a week now,Jainsacross Jharkhand, Karnataka, Madhya Pradesh, and Delhi,have beenorganising peaceful protests.
The outcry is against a Jharkhand government decision that could change the demographic of visitors to Sammed Sikharji at Parasnath Parvat (hill), Giridih district, taking it from a “place of pilgrimage” to a “religious tourist destination”.The protestersdemandthat the Jharkhandgovernment revoke its decisionto promoteParasnathParvat“as a part of eco-tourismor any kind of tourism”.They feel this will disruptthesanctityof the hill dotted with temples.
Sammed Sikharji, or just Sikharji, as it is reverentially known locally,stands 1,350 metres tall,andisone of the mostimportant pilgrimage sitesfor the Jains.It is believed that 20 of the 24 Tirthankaras(enlightenedbeings)attainedmoksha (salvation) here.The hill itself is named afterParasnath,the23rdTirthankara.Every year thousands ofJain pilgrims from across the world undertakea27-km-long trek to reach the summit.
Plea to withdraw
Jains have petitioned the Prime Minister, urging him to press the State to withdraw its decision.Additionally, the National Commission for Minorities wrote to the Jharkhand Chief Secretary in December 2022 taking cognisance of the representation from the Jain community to give the hill a “holy status”. The Commission is slated to hold a hearing on January 17 to discuss the matter.
The protest by the Jain community members erupted with the news that the Jharkhand government is considering a proposal to amenda2019 notification.The then BJP government had earmarkedParasnathHill as a religious tourism spot.Theyhad sent the proposal to theCentre,which also notified thehill asaneco-sensitive zone.
In July 2022, as part of its tourism policy, the Hemant Soren-led Jharkhand government decided to “promote religious tourism” atParasnathHills, a government tourism department official toldThe Hindu. They added, “However, nothing has been done yet on the ground and nothing much can be done in terms of infrastructure development, as the area has already been notified as a sanctuary and eco-sensitive zone.”
However, Muni Pranam Sagar ji, revered by the Jain community, has said that the Centre and State governments should denotify the Parshwanath Hill circuit as an eco-sensitive zone. “Why eco-tourism zone; why not eco-thirthsthanor eco-pilgrimage centre?” asked the Jain Muni while speaking to the media.
A number of leaders have come out in support of the Jain community.The Vishwa Hindu Parishad (VHP), while extending support to the community, asked the government to desist from makingthereligious placea“tourism spot” and respect people’s sentiments.
AIMIM Chief Asaduddien Owaisi tweeted to extend his support and said that the Jharkhand government must rescind the decision. Congress leader Shashi Tharoor too tweeted that the government should respect the sentiments of the Jain community and declare Sikharji as a religious place.
4. Online games must register with self-regulatory body, say draft rules.
Any game that allows wagering on its outcome is effectively a no-go area, says Minister; welcoming the publishing of the draft amendment, All India Gaming Federation says it believes this is first step for comprehensive regulation
The Electronics and Information Technology Ministry on Monday proposed an amendment to bring online gaming within the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The proposal, released for public consultation, requires all online games to register with any self-regulatory body approved by the Ministry.
This model is similar to the rules in place for digital news sites and streaming services under the IT Rules. “Any game that allows or permits wagering on its outcome is effectively a no-go area,” Union Minister of State for Electronics and Information Technology Rajeev Chandrasekhar said. “If you bet on the outcome of the game, it is prohibited.”
“It is the SRO [self-regulatory organisation] that will determine what constitutes prohibited wagering,” Mr. Chandrasekhar said. “If there is a practice where some foreign betting websites are permitted to advertise on Indian intermediaries, it is certainly our intent that it must not be permitted.”
It’s not clear if those games that have been recognised in courts as games of skill will continue to be able to operate under this policy. “This [framework] will boost the legitimate domestic online gaming industry, ensuring greater transparency, consumer protection and investor confidence,” Trivikraman Thampy, co-founder and co-chief executive officer (CEO) of Games24x7, said in a statement. The firm publishes rummy and fantasy sports games that allow players to stake real money.
The All India Gaming Federation (AIGF), whose members typically offer such games, welcomed the publishing of the draft amendment.
“We believe this is a great first step for comprehensive regulation for online gaming and [it] will hopefully reduce the State-wise regulatory fragmentation that was a big challenge for the industry,” its CEO, Roland Landers, said in a statement, alluding to attempts by States such as Tamil Nadu and Karnataka to ban real-money gaming platforms, which require players to risk real money to play.
In response to a query by The Hindu on whether AIGF members would continue to be able to offer games that allow wagering on outcomes, Mr. Landers said, “We at AIGF already follow a similar process for our members. However, we will study the rules and standards and reprocess all the members and their games accordingly.”
5. ST Commission holds its ground on impact of new rules on Forest Rights Act.
Fight for rights: The Environment Ministry dismissed the concerns flagged by the commission, saying they were ‘not legally tenable’. AP
In a sign of escalating conflict between the government and the National Commission for Scheduled Tribes (NCST) over the Forest (Conservation) Rules, 2022, panel Chairperson Harsh Chouhan on Monday said its position on the new rules being violative of the Forest Rights Act, 2006 “will be the same” even as the Environment Ministry has dismissed these concerns.
Mr. Chouhan told The Hindu, “The commission’s stand will be the same. It is the commission’s duty to intervene and recommend corrective measures whenever any rules run the risk of violating rights of tribespeople. This we will continue to do.”
This comes after Environment Minister Bhupender Yadav wrote to the panel dismissing the concerns flagged by Mr. Chouhan, saying they were “not legally tenable”.
Flagging concerns about the provision in the new rules that proposes to do away with the consent clause for diversion of forest land for other purposes, the panel had recommended that these rules should be put on hold, in a letter to the Environment Ministry last September.
In response, Mr. Yadav has insisted that the rules were framed under the Forest (Conservation) Act, 1980 and that the NCST’s apprehension of these rules being in violation of the Forest Rights Act, 2006 “is not legally tenable”.
The panel had pointed out that the FCR, 2022 had done away with the clause to mandatorily seek consent of the gram sabhas before the Stage 1 clearance or even after Stage 2 clearance. In such a scenario, project proponents, having received partial clearance, will be pushing the State governments and Union Territory administrations for “diversion at the earliest”, which would be “seriously impacting the process of recognition of rights under the FRA”.
The commission pointed out that between 2009 and 2018, of the 128 applications for forest diversion for mining, 74 were cleared at the Stage 2 and 46 at the Stage 1 and none of the rejections were based on FRA non-compliance. It added that in a subset of 14 cases (all post 2014), certificates showing completion of FRA process were issued “in violation of ground realities”. The commission said the new rules will only increase such violations.
The Minister did not respond to requests for a comment on Mr. Chouhan’s remarks.
6. IMF MD Georgieva warns that global economy faces tougher year in 2023.
Tough times: China’s growth in 2022 is likely to be at or below global growth, says IMF Chief Kristalina Georgieva. AP
World’s three main economies, U.S., China and EU, are slowing simultaneously, says Fund chief; she cautions that the Chinese government’s approach to reopening country’s economy will likely impact regional, global growth negatively
For much of the global economy, 2023 is going to be a tough year as the main engines of global growth, the United States, Europe and China, all experience weakening activity, the head of the International Monetary Fund said on Sunday.
The new year is going to be “tougher than the year we leave behind,” IMF Managing Director Kristalina Georgieva said on CBS’s ‘Face the Nation’.
“Why? Because the three main economies, the U.S., EU and China, are all slowing down simultaneously,” she said.
In October, the IMF cut its outlook for global economic growth in 2023, reflecting the continuing drag from the war in Ukraine as well as inflation pressures and the high interest rates engineered by central banks such as the U.S. Federal Reserve aimed at taming price pressures.
Since then, China has scrapped its zero-COVID policy and embarked on a chaotic reopening of its economy, though consumers there remain wary as coronavirus cases surge. In his first public comments since the change in policy, President Xi Jinping on Saturday called for more effort and unity as China enters a “new phase”.
“For the first time in 40 years, China’s growth in 2022 is likely to be at or below global growth,” Ms. Georgieva said.
Moreover, a “bushfire” of expected COVID infections in the months ahead are likely to further hit its economy and drag on both regional and global growth, she added.
“For the next couple of months, it would be tough for China, and the impact on Chinese growth would be negative, the impact on the region will be negative, the impact on global growth will be negative,” the IMF chief said.
7. Editorial-1: Towards reducing India’s prison footprint.
At the Constitution Day celebrations organised by the Supreme Court in November 2022, President Droupadi Murmu shared a snippet of her journey with the audience. She reflected on her visits to prisons across India and the circumstances of those incarcerated. She highlighted that these individuals were often unaware of their fundamental rights and had been incarcerated for prolonged periods for minor offences, while their families, struggling with poverty, were unable to bail them out.
President Murmu emphasised how the judiciary, executive, and legislature must work together to help them, and concluded by poignantly asking: How are we claiming that we are progressing as a nation, if we are still building prisons to address the issue of overcrowding?
In stark contrast, in June last year, Lieutenant-Governor of Delhi (L-G) Vinai Kumar Saxena directed the Delhi Development Authority (DDA) to allocate 1.6 lakh square metres of land to Delhi’s prison department to construct a district prison complex in Narela. The DDA has received ₹135.79 crore from the prison administration for the land thus far, and is demanding a further payment of ₹29.88 crore.
Officials claim that the prison is to be constructed in two phases, the first for high-risk offenders and the second for undertrials.
In phase 1, which is expected to be completed by April 2024, a high-security jail is to be built in the complex with a capacity to lodge 250 high-risk prisoners. The prison administration has incorporated stringent security measures in the design such as constructing high walls between cells to prevent inmates from viewing others, and interacting with each other, as well as building office spaces between cells to facilitate surveillance.
French philosopher Michel Foucault has extensively written about how the architecture of prisons is often used as a tool to surveil, torture, and break the souls of inmates. With this prison design, the Delhi prison administration is essentially creating solitary confinement which will have a severe detrimental effect on prisoners’ mental health.
Frank Gehry, a renowned architect, offered a semester-long course at the Yale School of Architecture in 2017, on architecture and mass incarceration. As their final project, students were tasked with designing a prison facility to house extraordinarily violent offenders. Their models featured open and communal space, fresh air, and spaces for family visits and therapy. Their versions of prisons looked like university campuses, health and wellness facilities, monasteries, and communal complexes emphasising the need to break away from the traditional conception of prisons as mere warehouses and cages, even for the most violent inmates. The students viewed prisoners and prison staff as their clients, rather than the state bureaucracy, and this impacted their designs.
Prisons in India are still governed by the Prisons Act, 1894, a colonial legislation which treats prisoners as sub-par citizens, and provides the legal basis for punishment to be retributive, rather than rehabilitative. These laws are also highly casteist, and remain largely unchanged since they were drafted by the British. For example, some jail manuals continue to focus on purity as prescribed by the caste system, and assign work in prison based on the prisoner’s caste identity.
Furthermore, Dalits and Adivasis are over-represented in Indian prisons. The National Dalit Movement for Justice and the National Centre for Dalit Human Rights’ report ‘Criminal Justice in the Shadow of Caste’ explains the social, systemic, legal, and political barriers that contribute to this. Legislations such as the Habitual Offenders Act and Beggary Laws allow the police to target them for reported crimes.
The L-G’s claim to decongest Delhi’s prison complexes by setting up prisons in Narela is misguided. It is helpful to look towards President Murmu’s timely and emphatic clarion call at the Constitutional Day speeches, where she insightfully noted that progress is antithetical to setting up prisons, and we must address congestion in prisons in non-carceral ways. These could include releasing unwell or old inmates, reducing penalties, allowing bail at affordable costs, employing anti-carceral ways of holding people accountable for their crimes, and expediting trials.
The primary reason why prisons are overcrowded is because India has not done enough to truly prevent crime. Our approach to crime should be preventive, rather than reactive. Instead of investing thousands of crores in finding “state-of the art” ways to cage and harm people, the L-G should reflect on the soul of India’s Constitution which imposes welfare obligations on the state. He could work with the Delhi government to channel public funds towards public goods such as housing, education, and employment, so that people would not be as compelled to, or have as much proclivity to commit crimes.
We must take preventive measures before we realise that we have travelled far down this road, and have subjected several people to unnecessary trauma and confinement. With the warning signs beseeching us, we must amplify President Murmu’s message on the need to de-carcerate and stop building more prisons, so that the L-G takes adequate steps in that direction. As the three-judge Bench of the Supreme Court led by Justice U.U. Lalit recently quoted Oscar Wilde while commuting a death sentence, we must recognise that ‘Every saint has a past, and every sinner has a future.’
Progress is antithetical to setting up prisons, and we must address congestion in prisons in non-carceral ways.