1. No need for extra curbs on free speech of Ministers: SC

A statement by a Minister cannot be attributed vicariously to government by invoking principle of collective responsibility… PM or CM doesn’t have disciplinary control over all members, says Bench

The Supreme Court held on Tuesday that there is no reason to impose “additional restrictions” on the right to free speech of Ministers, and the government is not vicariously liable for disparaging remarks made by them, even if the comments are traceable to state affairs or meant to protect the government.

“A statement by a Minister, even if traceable to any affairs of the state or for protecting the government, cannot be attributed vicariously to the government by invoking the principle of collective responsibility,” Justice V. Ramasubramanian held in the main judgment of the Constitution Bench. The judgment was endorsed by Justices S. Abdul Nazeer, B.R. Gavai and A.S. Bopanna on the Bench.

“It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly… The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers… in a country like ours, where there is a multi-party system and where coalition governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip whenever a statement is made by someone in the Council of Ministers,” Justice Ramasubramanian observed.

In a separate opinion, Justice B.V. Nagarathna differed with the leading judgment on the point, saying a Minister’s statement, if traceable to any affairs of the state or for protecting the government, can be attributed vicariously to the government by invoking the principle of collective responsibility, “so long as such statement represented the view of the government too”. “If such a statement is not consistent with the view of the government, then it is attributable to the Minister personally,” Justice Nagarathna drew the distinction.

2. We do not believe in war, but will fight if forced to: Rajnath

India has always been against war but “if it is imposed upon us, we will fight”m Defence Minister Rajnath Singh said in Arunachal Pradesh on Tuesday as he inaugurated 28 infrastructure projects built by the Border Roads Organisation (BRO).

The projects built at a cost of ₹724 crore include 22 bridges and three roads spread across several States.

“The world is witnessing a number of conflicts today. India has always been against war. It is our policy. We do not believe in war, but if it is forced upon us, we will fight. We are ensuring that the nation is protected from all threats. Our armed forces are ready and it is heartening to see that the BRO is walking shoulder to shoulder with them,” he said at a ceremony on the Siyom Bridge.

3. Preventing animal cruelty is a duty of the state

Soon, a Constitution Bench of the Supreme Court of India will deliver its verdict on the validity of Tamil Nadu’s law permitting the practice of jallikattu in the State. Usually held during the Pongal season, jallikattu is a sport where men compete against each other to hold on to the humps of agitated bulls that are released into an open arena. In 2014, in Animal Welfare Board of India v. A. Nagaraja, a two-judge Bench of the Supreme Court declared jallikattu illegitimate. The court found that the practice was cruel and caused the animal unnecessary pain and suffering. Since then, Tamil Nadu has made efforts to resurrect the sport’s legality. It is that act of revival which is now at stake.

Animal rights and safety

Oral arguments made in the case showed us just how complicated some of the issues involved in the dispute are. In some ways, the hearings also underlined the deficiencies inherent in the Constitution when it comes to addressing questions of animal welfare. Therefore, how the court chooses to resolve the questions posed to it could come to have a deep bearing on the future of animal rights and safety in our country.

None of the guarantees contained in Part III of the Constitution, which deals with fundamental rights, are explicitly conferred on animals. Article 14 (right to equality) and Article 21 (right to life and personal liberty) are bestowed on persons. Until now, we have generally understood “persons” to mean human beings, or, in some cases, associations of human beings, such as corporations, partnerships, trusts, and the like. No doubt, some of the Directive Principles of State Policy and the Fundamental Duties, contained respectively in Parts IV and IVA of the Constitution, reflect a responsibility placed on the state and on human beings to protect and improve the natural environment. But these are unenforceable obligations.

Therefore, when efforts to legislate on animal welfare were first made, they did not emanate as much out of a belief that animals were vested with rights as they did from a more elementary ethical precept that our collective conscience ought to make it clear that it was morally wrong to inflict unnecessary pain and suffering on animals. It was with this vision in mind that Parliament enacted the Prevention of Cruelty to Animals Act (PCA Act), 1960.

The PCA Act isn’t without its shortcomings. While it criminalises several types of actions that cause cruelty to animals, it exempts, for example, from its coverage the use of animals for experiments with a view to securing medical advancement. But what is clear, as the Supreme Court previously affirmed in A. Nagaraja, is that jallikattu falls within the boundaries of the actions forbidden by the PCA Act. It is for this reason that the present effort at regulating the practice seeks to create a blanket exemption.

When Tamil Nadu amended the PCA Act in 2017— it did so on the basis that both the state and the Union government have the power to legislate on issues concerning cruelty to animals — it specifically excluded jallikattu from the confines of the statute’s various protections. It also secured the President’s imprimatur for the law, and thus attempted to save the legislation from any accusation that it was repugnant to the PCA Act and therefore illegal.

Arguments of petitioners

Judicial review of legislation can broadly be made on two grounds. One, on whether the legislature possesses the competence to enact the law; and two, on whether the law violates one or the other of the fundamental rights delineated in Part III of the Constitution. Tamil Nadu’s amendments, the petitioners claimed, failed on both grounds. First, the petitioners recognised that both the Union and the State legislatures have equal power to make laws on ‘prevention of animal cruelty’ — relatable as it is to Entry 17 of the Concurrent List of Schedule VII to the Constitution. But the law regulating jallikattu, according to them, by excluding the practice from the PCA Act, has the effect of condoning cruelty on animals and hence must be seen as a colourable action that bears no nexus to Entry 17. Second, the petitioners submitted that the Supreme Court arrived at clear findings of fact and law in 2014. In A. Nagaraja, the court had held that jallikatu, in and by itself, amounted to a violation of the existing provisions of the PCA Act, and the fundamental duty contained in Article 51A(g), which requires citizens “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.” The effect of this violation, the court held, had a direct bearing on the right to life contained in Article 21. The Bench was conscious that the right in Article 21 is conferred only on human beings. But the expanded meaning of the word “life” over the years, which now included a right against disturbance to the basic environment ought to mean that animal life must also be treated with “intrinsic worth, honour and dignity,” the court found.

Both sets of arguments made by the petitioners call for deep reflection. But the latter argument — on infraction of fundamental rights — raises several allied questions: Do animals have personhood? Does our idea of justice include a guarantee of animal rights? If not, do we still owe a duty of care towards our fellow creatures? What does that duty entail? How does it balance with other rights guaranteed to human beings?

Care towards animals

On any reasonable reading of the Constitution, it might be difficult to hold that animals are promised rights to life and personal liberty under Article 21 and equality under Article 14 — a conclusion to that effect could well lead to bizarre consequences. Arguments in favour of personhood invariably spring out of a belief that animals, especially certain kinds of animals such as apes, elephants, and whales, share much in common with human beings. But as the philosopher Martha Nussbaum says, our duty of care towards animals needs to hardly originate out of our similarities to them. We must instead see “each form of animal life in all its beauty and strangeness.”

Therefore, rather than focusing on personhood, the better approach to the dispute, the approach that maintains a greater fidelity to our Constitution’s text and values, is to see it in the context of our own right to live in a world that treats animals with equal concern. The judgment in A. Nagaraja hinted at this approach but stopped short of fleshing it out. Article 21, Justice K.S. Radhakrishnan held, no doubt safeguards only the rights of human beings, but the word “life” is today understood to mean something more than mere existence; it means an existence that allows us, among other things, to live in a clean and healthy environment. Indeed, it is possible to argue that a human right to a healthy environment would include a human right to animal welfare. Viewed thus, our governments would be constitutionally obligated to take measures to help the flourishing of our fellow creatures. In this conception, legislating to prevent animal cruelty is no longer an option; it transforms into a binding duty cast on the state.

4. It is crucial for India to embrace multi-domain operations

The India-China skirmish on the Arunachal Pradesh border has brought the Chinese threat on the front burner again. This has made External Affairs Minister S. Jaishankar accept that to counter this threat, “…we have a deployment of the Indian Army… that we have never had.” The threat had never decreased, but faded in public consciousness due to electioneering, bridge collapses, yatras, G-20, etc. Low-level and geographically restricted clashes will keep recurring. But what this should not do is to lull us into a complacent mindset that accepts such clashes, where the Indian jawan gives back more with sticks and fisticuffs than what he receives, as the likely future conflict scenario with China. The threat, actually, is at the other extreme of technical advancement — in the concept of multi-domain operations (MDO).

Understanding multi-domain operations

The term MDO has entered India’s military lecture circuit big time; however, it is being bandied about loosely, with its true characteristics and import being understood by few. MDO is not just actions on land, in sea, air, cyber, space and in the electromagnetic spectrum. It comprises operations conducted across multiple domains and contested spaces through convergence of capabilities to overcome an adversary’s strengths by presenting it with operational and/or tactical predicaments. This means having a common operating picture across all domains which forms the basis to decide the best tool to address a given task. Hence, it is not one service using capabilities in multiple domains to do a task (as is happening now), but the best positioned and capable operator of any service doing it across any domain. Thus, an Army coastal missile battery could be tasked to strike an enemy naval vessel detected by the radar of an Air Force aircraft; or an Air Force’s armed unmanned aerial vehicle on an Intelligence, Surveillance and Reconnaissance mission could be diverted to use its weapons against an Army target detected by a naval/civilian satellite; alternatively, a cyber weapon could be used. In simple terms, the MDO architecture uses any sensor and the best positioned shooter to accomplish objectives; the technical complexity and the command, control and communication (C3) structure required can well be imagined.

MDO and its C3 structure would have inputs from all sensors to come up with an optimum engagement solution using artificial intelligence. This demands three things. First, all sensors (and other information input sources) must be capable of being hosted on the MDO architecture. Second, all solution providers (executors) must be able to receive inputs and instructions from the MDO C3 structure and carry them out. And third, if the link to the main structure is not available (say, jammed by the enemy), the mission command characteristics of distributed control would come into play so that operations continue.

This is complicated, for one is talking of pioneering technologies that only nations with a developed scientific base and financial standing can afford. It would require a de novo look at doctrine, planning, acquisition, staffing and training. This raises a doubt — does this affect India or is it a first world problem? Should New Delhi be pouring money and resources into an American concept (being progressed by the U.S. aggressively for the past decade) that may not concern us? The answer comes easy when one considers that China, which is attempting to match U.S. military power, is not lagging far; it is closely watching the Russia-Ukraine conflict where Western specialists are helping Ukrainians utilise the power of algorithms to fuse reconnaissance from space and choose the best shooters to strike Russian targets. As an article in The Washington Post puts it, “The Ukrainians are fusing their courageous fighting spirit with the most advanced intelligence and battle-management software ever seen in combat.” This is MDO, in an abridged form, in action. If left behind, India would be deterred by denial during peacetime itself as Beijing, which has the technology and finances, masters it. India has no choice but to embrace MDO too.

Four-pronged strategy

A four-pronged strategy is suggested. First, in the short-term, traditional physical domains must be stabilised, with critical deficiencies of the services being plugged. Second, our C3 networks need to be hardened and protected against cyber threats. Importantly, they need to be linked and synchronised so that seamless exchange of data is ensured. Third, for the long term, a pilot project must be started now so that the true challenge of creating an MDO environment is grasped; presently, it’s just western literature driving theoretical discussions in the seminar circuit. The pilot project would identify the technologies required and, equally importantly, an idea of the monies necessary. And finally, to get the fundamentals of MDO right, it is vital to train and educate personnel starting now; incidentally, the U.S. Air Force has a one year-long training course ongoing to help develop “….critical thinking and problem solving skills at the operational level of war” amongst Joint All Domain Specialists, as the trainee officers would be called.

Technology has changed the face of war. History is witness to perils on the battlefield if scientific advances are overlooked. Battlefields too have changed from physical brawls to cyber and precision strikes. But err… if the recent brawls at Pangong Tso, Galwan and Yangtse and the thrust required towards MDO are yardsticks to go by, strategic minds at the higher levels of the military and government have a plateful of imperatives to address. This may not be an era of war, as someone famously said recently, but homilies are for politicians and not for professionals. The proverbial powder must not only stay dry but be upgraded in time.

5. A late but right call by Kerala Governor

Before finally agreeing to reinstate former Minister Saji Cherian into the Cabinet, Kerala Governor Arif Mohammed Khan had left everyone guessing when he decided to seek legal advice before arriving at the decision.

It is a requirement under Article 163 of the Constitution that there shall be a Council of Ministers headed by the Chief Minister to aid and advise the Governor in the exercise of his functions. The Chief Minister shall be appointed by the Governor, who shall also appoint the other Ministers on the advice of the Chief Minister. All Ministers shall hold office during the pleasure of the Governor (Article 164). Citing this, Mr. Khan had earlier threatened to drop the Ministers who had allegedly insulted him in public. Later on, it was pointed out that such a step cannot be taken, and the “pleasure doctrine” cannot be stretched too far.

The Cherian conundrum

Saji Cherian, elected from Chengannur constituency under a CPI(M) ticket, was inducted as the Minister for Fisheries, Culture and Youth Affairs into the second Pinarayi Vijayan government. He was made to resign from the Cabinet as a result of a speech he made to his party workers criticising the Constitution.

He had apparently said: “We claim that our Constitution is the most beautiful one. I would say that the Indian Constitution is something that can loot the maximum number of people in the country. Something that the British dictated was written down verbatim as the Indian Constitution.”

Following strong inner party criticism, the party decided to reinstate Mr. Cherian as Minister and wrote to the Governor to allot time for the swearing-in ceremony. It was widely reported that Mr. Khan was reluctant to give a date and he was consulting his lawyers on this issue.

Can the Governor refuse to administer the oath to the Minister, and will it be justified? It is provided in Article 164(3) that the Governor shall administer the oaths of office and secrecy to a Minister before he assumes office. The Schedule III of the Constitution lays out the oath of office and oath of secrecy for a Minister of a State. For a person to become a Minister, he must be a Member of the Legislature of the State, and if the State has a legislative council, he can also be a member of that council and should not have suffered any disqualification provided under the Constitution.

It is also a requirement that the council of ministers shall be collectively responsible for the Legislative Assembly of the State. In this case, the concerned Minister had taken an oath ( similar to that of a minister) when he got elected as an MLA from Chengannur and has not suffered any disqualification for his so-called anti-constitutional speech.

After the 1952 elections in the Madras Province, when the Congress Party did not have an absolute majority, and the legislature party also could not elect a leader, the high command announced the induction of Rajaji as the Chief Minister when he was neither MLA nor MLC.

However, the then Governor Sri Prakasa nominated him as an MLC and administered oath even without the convening of the legislative council. Though P. Ramamurthy, an Opposition leader, filed a writ petition before the High Court of Madras challenging the move, the petition was dismissed saying that he does not have locus standi to question it.

The oaths are prescribed under Schedule III for various constitutional posts, including Ministers and judges, and without it, one cannot assume office. If the authority empowered to administer the oath refuses to do so, what should subsequently happen is a question that has come up before the courts.

In April 1978, Vasantha Pai, a Senior Advocate got elected as a Member of the Tamil Nadu Legislative Council from the graduate constituency. It is a requirement under Article 188 that he be administered the oath by the Governor or a person appointed on his behalf under Schedule III.

For some reason, he did not want to take oath before the Pro tem Chairman who was nominated by the Governor. He met the then Governor of Tamil Nadu and informed him that he would like to be administered oath by him. As he did not get any answer, he sent a telegram asking him to fix a date for the oath.

‘Oath by letter’

Later on, the petitioner sent his oath in the form prescribed in Schedule III duly signed by him in duplicate to the Governor, along with a covering letter in which he stated that he is sending the oath in view of the delay in administering it. Referring to Article 188, he said it was the sacred Constitutional duty of the Governor to administer oath and stated that no red tape or bureaucracy should be permitted to obstruct it.

Thereafter he filed a writ petition before the Madras High Court seeking a declaration that he has complied with the constitutional requirement of having to take oath before assuming office. The court allowed his case and he entered the legislative council successfully (Vasantha Pai, July 1978).

Thus, had Arif Khan refused to administer oath to Saji Cherian, all he had to do was to write a registered letter to the Governor signing the oaths of office and secrecy and later move the High Court of Kerala for appropriate declaratory relief. Taking oath is a requirement under law, but should the Governor not give an audience, it does not prevent the office holder from entering office. After all, the procedure is only handmade.

6. Withdrawal of PMGKAY will hurt poor, benefit Centre, says Congress

The discontinuation of the Pradhan Mantri Garib Kalyan Anna Yojana (PMGKAY) will hurt the poor and benefit only the Narendra Modi government, the Congress said on Tuesday.

The government, the party said, was falsely trumpeting the move to give 5 kg foodgrains free to beneficiaries under the National Food Security Act as a historic decision benefiting the poor, when in fact, the monthly expenses of ration card holders would only increase.

In a statement, Congress communication chief Jairam Ramesh said the move was taken without consultations with the State governments or deliberating it in Parliament.

“The main beneficiary is the Modi government which will save over ₹1 lakh crore and not ration card holders whose spending will increase,” he said.

He pointed out that for two years 81 crore ration card holders were eligible for 10 kg of food grains per person (5 kg under PMGKAY and 5 kg under NFSA), but now they will get only 5 kg.

The monthly expenditure for a family of five could now go up by ₹750, which comes to around ₹9,000 annually, he said.

He said the PMGKAY was introduced due to the deep economic distress faced by people during the pandemic and the situation had hardly improved. “Every basic necessity is more expensive than it was at the time of the UPA government, incomes of the majority of Indians have not risen and unemployment is at a record high.”

He also sought to remind Mr. Modi on his own objections when the UPA government brought the NFSA. “CM Modi who opposed NFSA now claims credit for this pro-poor UPA policy. U-Turn Ustad strikes again,” he tweeted.

7. Not all religious conversions are illegal: Supreme Court

The Supreme Court on Monday observed that all religious conversions cannot be presumed by a State to be illegal while agreeing to hear a Madhya Pradesh government appeal against a High Court decision freezing a mandatory provision requiring a person who desires to convert to another faith to give 60 days’ prior intimation to the District Magistrate.

A Bench led by Justice M.R. Shah issued notice but refused to order an interim stay of the High Court order even as Solicitor-General Tushar Mehta, for Madhya Pradesh, argued that “conversion in the country is based on marriage”

The provision under question is Section 10 of the Madhya Pradesh (Freedom of Religion) Act, 2021. Section 10(1) and (2) of the Act mandates that a person who desires to convert and a priest/person who intends to organise a conversion, respectively, should give a two-month prior declaration to the District Magistrate that the proposed change of religious faith is not motivated by force, undue influence, coercion or allurement.

Mr. Mehta said conversions largely happened in the country by marrying a person of another faith. The provision did not ban inter-faith marriage but only acted as a safeguard against forcible or illegal conversion. He contended that Section 10 of the 2021 Act was in pari materia [on the same subject matter] with Section 5 of the Madhya Pradesh Dharma Swatantrya Adhiniyam of 1968, which was upheld by a Constitution Bench in a judgment in Rev. Stainislaus Vs. State of Madhya Pradesh in 1977.

Mr. Mehta submitted that the 1977 verdict had held that the word “propagate” in Article 25 of the Constitution did not give “the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets”. The Constitution Bench had held there was “no fundamental right to convert another person to one’s own religion”. Freedom of religion was not guaranteed in respect of one religion only, but covered all religions alike.

8. PM, CMs have no disciplinary control over members of the Council of Ministers, says SC

A Prime Minister or a Chief Minister in a country where there is a multi-party system cannot afford to crack the whip every time a Minister makes a statement which may either be in bad taste or disparaging, the Supreme Court said in a Constitution Bench judgment on Tuesday.

“The Prime Minister or the Chief Minister does not have disciplinary control over the members of the Council of Ministers,” Justice V. Ramasubramanian, who authored the main judgment endorsed by three other judges on the Constitution Bench, said.

He said a “strong Prime Minister or Chief Minister will be able to drop any Minister out of the Cabinet”, but “in a country like ours where there is a multiparty system and where coalition governments are often formed, it is not possible at all times for a Prime Minister/Chief Minister to take the whip, whenever a statement is made by someone in the Council of Ministers”.

“Governments which survive on wafer-thin majority sometimes have individual Ministers who are strong enough to decide the very survival of such governments. This problem is not unique to our country,” he observed.

The four judges said their observations did not mean that any public official, including a Minister, could get away after making irresponsible statements, even bordering on hate speech. They were only discussing whether the government could be held vicariously liable under the principle of “collective responsibility” for the disparaging statements of a Minister. Answering the question in the negative, Justice Ramasubramanian said the collective responsibility was that of the Council of Ministers.

He urged the court to at least restore the implementation of Section 10 of the 2021 Act to the extent that the intimation to District Magistrates may continue. He said the High Court had gravely erred in not considering the larger public interest involved against the conduct of illegal religious conversions.

“But not all conversions are illegal…,” Justice Shah remarked orally. The Bench said it would examine the petition and the question of granting interim relief in the next hearing on February 7.

9. India said to eye $17 bn cut in food, fertilizer subsidy spend

The 26% reduction in subsidy spending is aimed at reining in fiscal deficit, two government officials say; large part of savings expected from the end of a COVID-era free food scheme

India aims to cut spending on food and fertilizer subsidies to ₹3.7 trillion in the fiscal year from April, a 26% cut from this year, two government officials said, to rein in a fiscal deficit that ballooned during the COVID-19 pandemic.

Food and fertilizer subsidies alone account for about one-eighth of India’s total budget spending of ₹39.45 trillion this fiscal year, but reductions in food subsidies in particular may prove politically sensitive with elections looming on the horizon.

The government expects to budget about ₹2.3 trillion for food subsidies in the coming fiscal year, compared with ₹2.7 trillion for the current year, the two officials said.

Spending on fertilizer subsidies will likely fall to about ₹1.4 trillion, according to one of the officials and a third official. That compares with almost ₹2.3 trillion this year, the third official added.

A large part of the savings will come from the end of a COVID 19-era free food scheme, which will be replaced with a lower-spending programme, the first two officials said. The government is eager to rein in its fiscal deficit, which is targeted at 6.4% of GDP for the current fiscal year.

10. ‘States’ borrowings in January-March may fall short of target’

States may not borrow as much as planned for in the current quarter, which will help keep the spread between State and central government bond yields in check, analysts said.

States plan to sell bonds worth ₹3.41 trillion, the highest quarterly borrowing ever scheduled, in the last three months of the financial year, according to a calendar of planned State borrowings released by the Reserve Bank of India.

“The actual issuance is likely to be lower, based on historical pattern and States’ fiscal performance,” said Gaura Sen Gupta, India economist at IDFC First Bank. States’ cash balances with the RBI remain high, reflecting their comfortable fiscal position, she added.

11. ‘RBI likely sold dollars to stop rupee falling below 83 level’

The Reserve Bank of India likely sold dollars via state-run banks to prevent the rupee from falling below the 83-per-U.S. dollar level, traders told Reuters.

On the interbank order matching system, rupee fell to a low of 82.9950 against the dollar.

The way the rupee recovered from 83 and the offers from state-run banks point to the Reserve Bank of India, said a trader at a private sector bank.