1. The Supreme Court order on PF pensions
What has the SC ruled in the case where the Employees’ Provident Fund Organisation appealed various orders favouring employees? Who all stand to benefit from the order? Who all have been excluded? What has been the Union government’s argument?
On November 4, a three-judge bench of the Supreme Court ruled in a case where the EPFO appealed various orders favouring employees issued by the Kerala, Rajasthan, and Delhi High Courts. The order provided relief to some employees.
The Supreme Court upheld the amendments to the pension scheme made by the government in 2014, which restricts even membership of the scheme up to a wage ceiling of ₹15,000. One section of current employees (and by extension members of the pension scheme who were contributing to the pension fund as of September 1, 2014) stand to benefit from the order. Those excluded include those who retired prior to September 1, 2014 without exercising the joint option in the unamended scheme, since they had already exited the membership.
While the court granted partial relief to the employees, it also gave some consideration to the Union government’s argument that it would be stretched for funds to pay higher pension.
The story so far:
Thousands of working individuals who are eligible for pension under the Employees’ Pension Scheme-1995 (EPS-1995) of the Employees’ Provident Fund Organisation (EPFO) and those who already draw PF pension have been litigating in various courts for several years, seeking to invoke a provision in the scheme by which pension benefit can be substantially increased. A three-judge bench of the Supreme Court ruled in the matter on November 4, in a case where the EPFO appealed various orders favouring employees issued by the Kerala, Rajasthan, and Delhi High Courts. The order provided relief to some employees.
Why did the employees litigate?
An option to increase pension is provided for in EPS-1995, for which 8.33% of the employer’s contribution to the employee’s PF account must be remitted into the pension fund on actual basic pay, dearness allowance and retaining allowance. The request for a higher pension should be made in the form of an option exercised by both employee and employer. But due to information asymmetry, most members did not exercise this option and have been contributing to the pension fund only within a salary cap (which was revised from ₹6,500 to ₹15,000 eight years ago), and not on actual pay. This reduced the pension benefit sharply.
The litigation by employees arose because the Union Government amended EPS-1995 effective September 1, 2014, introducing, among other changes, a time limit of six months for the members, jointly with their employers, to opt for higher pension based on their actual salary, and a further six months where reasonable cause for delay existed. The time limit was, however, not known to the employees as there was no communication to them; subsequent applications for higher pension were rejected by the EPFO citing the cut-off date, even after it had been set aside by a two-judge bench of the SC in the precedent-setting R.C. Gupta case in 2016.
What is the impact of the order?
The Supreme Court importantly upheld the amendments to the pension scheme made by the government in 2014, which restricts even membership of the scheme up to a wage ceiling of ₹15,000. But it provided some relief to employees.
One section of current employees (and by extension members of the pension scheme who were contributing to the pension fund as of September 1, 2014) stand to benefit from the order. The SC bench directed that members of the scheme who did not exercise the option for higher pension as provided for in the scheme as it existed before the 2014 amendment, were entitled to exercise the option, jointly with their employers, even under the amended scheme. This right was upheld in the R.C. Gupta judgement, which said no cut-off date was envisaged in EPS-1995.
The court said that all employees who did not exercise the option but were entitled to do so due to interpretation of the cut-off date by authorities should get a further four months to do so from the date of the order. The implication is that those who were members of EPS-1995 as of September 1, 2014 and beyond could exercise the joint option. This means that serving employees can opt for higher pension now, transferring the stipulated part of the employer’s contribution to the pension fund. Other members who contributed to the fund beyond that date but retired, would have to remit the stipulated dues into the pension fund of the EPFO.
Yet, the court specifically excluded those who retired prior to September 1, 2014 without exercising the joint option in the unamended scheme, since they had already exited the membership. This part of the order covers older employees who get a meagre pension. They cite lack of communication on the option of higher pension while in service.
How has the court responded to the government’s demands?
While the court granted partial relief to the employees, it also gave some consideration to the Union government’s argument that it would be stretched for funds to pay higher pension. The members opting for higher pension would, therefore, have to contribute an additional 1.16% on salary exceeding ₹15,000 as a temporary measure for six months, while the government came up with measures to augment its resources. This includes the possibility of legislatively raising the employer’s rate of contribution. At the same time, the judges held the government’s demand for the 1.16% employee contribution not sustainable by law. The compromise was thus only to advance the rollout of the higher pension.
The apex court recognised the government’s powers to amend the pension scheme prospectively or retrospectively under Section 7 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. Based on this recognition, the judges did not interfere with the revised formula used to calculate the quantum of pension — the employees had challenged the reckoning of pensionable wages spread over 60 months of service before the employee exited, rather than 12 months of service that existed in the pre-2014 scheme. The Union government used the example of manual labourers to claim that wages could vary widely, and even be low in the final 12 months. Ironically, the case pertained to organised sector employees whose wages are highest in the last year or service.
2. Should the age of consent be changed for adolescents?
Why are consensual and non-exploitative sexual acts also coming under the radar of the POCSO Act and IPC? What are the ground realities? What have the courts observed?
On November 4, the Dharwad Bench of the Karnataka High Court, while dismissing a case filed under the Protection of Children from Sexual Offences Act, 2012, said the Law Commission of India would have to rethink the age criteria, to take into consideration the ground realities.
A study noted that in many cases, older adolescents elope fearing opposition from parents resulting in a situation where families file a case with the police, who then book the boy for rape under the POCSO Act and abduction with the intent to marry under IPC or the Prohibition of Child Marriage Act, 2006.
Adolescents have to be made aware of the stringent provisions of the Act and also the IPC.
The story so far:
On November 4, the Dharwad Bench of the Karnataka High Court, while dismissing a case filed under the Protection of Children from Sexual Offences Act, 2012, said the Law Commission of India would have to rethink the age criteria, to take into consideration the ground realities. The aspect of consent by a girl of 16 years, but who is below 18 years, would have to be considered, it said, if it is indeed an offence under the Indian Penal Code and/or the POCSO Act.
What are the terms of the POCSO Act?
Under the POCSO Act, 2012, and under several provisions of the IPC, whoever commits a penetrative sexual assault on a child — anyone below 18 years of age — can be “imprisoned for a term which is not less than seven years but which may extend to imprisonment for life, and shall also be liable to [a] fine.” Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape, thus opening it up to stringent punishment. There have been several instances in the past few years when the courts have quashed criminal proceedings of rape and kidnapping, after being convinced that the law was being misused to suit one or the other party. Often, the offender had been booked under Section 366 of the IPC, Section 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006.
Is the law being misused?
In its order, and several other courts have passed similar judgments too, the Karnataka High Court said the effect of such criminal prosecution of a minor girl or boy is causing severe distress to all concerned, including the families. Sometimes, disgruntled parents file a case to foil a relationship between two adolescents. In 2019, a study, Why Girls Run Away To Marry – Adolescent Realities and Socio-Legal Responses in India, published by Partners for Law in Development, made a case for the age of consent to be lower than the age of marriage to decriminalise sex among older adolescents to protect them from the misuse of law, sometimes by parents who want to control who their daughters or sons want to marry. The study noted that in many cases, a couple elopes fearing opposition from parents resulting in a situation where families file a case with the police, who then book the boy for rape under the POCSO Act and abduction with the intent to marry under IPC or the Prohibition of Child Marriage Act, 2006.
In 2021, in the Vijaylakshmi vs State Rep case, the Madras High Court, while dismissing a POCSO case, said the definition of ‘child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.The court suggested that the age difference in consensual relationships should not be more than five years. This, it said, will ensure that a girl of an impressionable age is not taken advantage of by “a person who is much older.”
What needs to be done?
With the courts and rights activists seeking amendment to the age of consent criteria, the ball lies in the government’s court to look into the issue. In the meantime, adolescents have to be made aware of the stringent provisions of the Act and also the IPC.
Even as activists are calling for a tweak to the POCSO Act, and raising awareness about its terms, a parliamentary committee is looking into the Prohibition of Child Marriage (Amendment) Bill, 2021 which seeks to increase the minimum age of marriage for women to 21 years. Rights activists feel instead of helping the community, raising the age may force vulnerable women to remain under the yoke of family and social pressures.
3. As tensions mount, some Raj Bhavans are on the war path
The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government
As the Kerala High Court orders a stay on the show-cause notices sent by the Governor to the State’s Vice-Chancellors and with the Dravida Munnetra Kazhagam calling for the removal of the Tamil Nadu Governor, the office and role of the constituitional head of States has come under the spotlight. In this article dated January 10, 2022, P.D.T Achary, explains how the Governor’s position has to be in tandem with the governments’.
Recent media reports about the confrontation between the Governors and the State governments, in Maharashtra and Kerala, have turned the spotlight on the rather delicate relationship between the constitutional head of the State and the elected government. In Maharashtra, for example, the situation was indeed bizarre in so much as the Governor refusing to accept the date of election of the Speaker recommended by the State government. Consequently, the Assembly could not elect the Speaker.
The situation in Kerala has been no less bizarre. The State Governor having reappointed the Vice-Chancellor of Kannur University in accordance with the law, made an allegation against the Kerala government that he was under pressure from the Government to reappoint the Vice-Chancellor. The Governor confessed that he had done the wrong thing by yielding to governmental pressure. He has added that he does not want to remain the Chancellor any more, though he holds this position in an ex-officio capacity which means that he would have to remain the Chancellor as long as he is the Governor. But the Governor remains adamant.
The Governor levelling allegations against his own government is not a first-time development. In West Bengal this has been a regular feature. Similarly, non-acceptance of the advice of the Council of Ministers too has been witnessed in Rajasthan as well as Maharashtra again. Of course, there have been differences between Governors and Chief Ministers in the past too, but these have been rare occurrences. But the open confrontations now clearly cross the boundaries of what is constitutionally permissible behaviour.
With discretionary powers
The relationship between the Governor and Chief Minister has, even at the best of times, not been absolutely simple and tension free. It has something to do with the whole idea of the office of the Governor and its past history. In the colonial era, the Governor was the absolute ruler of the province who was answerable ultimately to His Majesty, the King. A closer look at the debates in the Constituent Assembly on the Governor would reveal that there were divergent views on the powers to be given to the Governor. In fact, there were members in the Assembly who wanted the Governor to be as powerful as the colonial-era Governors. Though B.R. Ambedkar was clear that the Governor should only be a constitutional head and the executive power should vest entirely in the elected government, he promoted the idea of vesting certain discretionary powers in the Governor. In this respect he was guided by the thinking that the State governments are in subordination to the Union government and, therefore, the Governor should be given discretionary powers to ensure that they act so.
So, ultimately, the Governor who emerged from the Constituent Assembly was one with certain discretionary powers prescribed by or under the Constitution unlike the President of India who has not been given any such powers. Further, Article 163 (Article 143 in the draft Constitution) became a ‘blind reproduction of Section 50 of the Government of India Act 1935’ (H.V. Kamath). This exact reproduction of the provision in the Act of 1935 has, to a great extent, introduced a vagueness about the actual powers of the Governor vis-à-vis the elected government in democratic India which was corrected only with the Supreme Court of India stating the law in unambiguous terms in Shamsher Singh (1974). From Shamsher Singh to Nabam Rebia (2016) the top court declared that the Governor can, in the exercise of executive power of the state, act only on the aid and advice of the Council of Ministers “…save in a few well-known exceptional situations”.
The Maharashtra case
The Maharashtra Governor’s refusal to accept the date of election of the Speaker goes against the principles of constitutional government. It must be stated here that the Constitution has not assigned any role to the Governor in the election of the Speaker under Article 178, which is exclusively the job of the House. It is only the House rule which says that the Governor shall fix the date. The date as such has no great significance. Under the procedure followed in all Assemblies, the government fixes the date and conveys it to the Secretary of the Assembly who forwards it to the office of the Governor for his signature. After the date is formally approved by the Governor — which he is duty bound to do — the members are informed about it.
Now the question is if the Governor does not approve the date, can the election be held? Fixing the date by the Governor is not of any constitutional importance; election by the House is the important thing. So, if the Governor stands in the way of the election, the only way open to the House is to amend that particular rule which empowers the Governor to fix the date. It can provide that the Secretary on receiving the date from the government shall notify the members of the same. The election can be held either through secret ballot or through a motion in the House as is done by the Lok Sabha. But it must be said that it could be for the first time in the history of free India that a Governor has refused to fix the date of election of the Speaker and, consequently, the election could not be held. The Maharashtra Assembly is now without a Speaker being in office.
The Kerala situation is even more curious. There, the controversy surrounds the reappointment of the incumbent Vice-Chancellor of Kannur University. There was a suggestion from the State government routed through the Pro Chancellor who is the Minister for Higher Education for the reappointment of the incumbent Vice-Chancellor. The Governor being the ex-officio Chancellor of the university and the appointing authority, accepted the suggestion and reappointed him. After some time, the Governor went public with a serious allegation that he had signed the order of appointment under pressure from the Government and that he had done the wrong thing by reappointing the Vice-Chancellor under pressure.
It must be stated here that the Governor had acted perfectly in accordance with the law in reappointing the incumbent Vice-Chancellor. Under the University Act, an incumbent Vice-Chancellor is eligible for reappointment. Since the Act does not lay down any specific procedure for reappointment, the Chancellor was right in accepting the suggestion or the recommendation made from the Government. In fact, he or she can accept suggestions from any person including the Leader of the Opposition in the Assembly. The point worth noting here is that the Governor as Chancellor is not required to act on the advice of the Council of Ministers in the matter of appointment of Vice-Chancellor and others in the university. He can act absolutely independently. He could also have rejected the suggestion from the Government.
The Kerala High Court has clarified this legal point in Gopalakrishnan vs Chancellor, University of Kerala . So the Governor of Kerala needs to apply his mind independently to the case of reappointment, evaluate the performance of the Vice Chancellor and fully satisfy himself about the merit of the appointee before signing the appointment order. It is presumed that he had done this. Therefore, it is baffling why he chose to go public and level serious allegations against the Government and incriminate himself in the process. Adding to the confusion, the Governor has divested himself of the ex-officio charge of Chancellor and declared that he will not be functioning as Chancellor. Needless to say, one cannot relinquish a charge which he holds in an ex-officio capacity unless he leaves his substantive post.
Detachment is the essence
These are very bizarre situations indeed. The Governor is a high constitutional authority. He needs to function within the four walls of the Constitution and be a friend, philosopher and guide to his government. The Constitution does not allow him to be a parallel government; nor does it make him personally responsible for his actions as Governor. That such confrontations take place only in Opposition-ruled States shows that political expediency has overtaken constitutional propriety. Wading through the Constituent Assembly debates, one comes across these wise words of Pandit Thakur Das Bhargava, a conscientious member of the Assembly: “He (Governor) will be a man above party and he will look at the minister and government from a detached stand point”. Detachment is the essence of India’s ancient culture. But Pandit Thakur Das’s voice has ended up as a voice in the wilderness.
4. CSIR-NGRI to install early warning system against floods, rockslides, and avalanches in Himalayan States
The National Geophysical Research Institute (NGRI) of the Council of Scientific and Industrial Research has begun field studies to put in place an early-warning system in the Himalayan States against major and sudden floods, rockslides, landslips, glacier lake bursts and avalanches and to prevent Chamoli kind of disasters in future.
“Right now, we are able to detect the major events through geophysical and seismological observations, but are yet to demonstrate the minimum threshold or the maximum distance from which we can give an early warning of natural disasters, which are 10 times less intense than what happened at Chamoli, with the help of various instruments. Our scientists are working on those systems,” NGRI Director V.M. Tiwari said.
The scientists in the institute have identified a few locations in the higher reaches of Uttarakhand for “densification” of seismometers and river gauges to take the total number to 100 from 60. The objective is to closely monitor the river flows in specific areas along the catchment to detect any sudden rise in water levels or flooding threshold that can lead to a hazard. “A 5 cm of rainfall or a glacier melt may not be hazardous, but if there is a heavy rockfall or sudden lake burst, there could be massive flooding. What is the minimal level of time required and distance from which an early warning can be given will be assessed after discussions with the various stakeholders,” Mr. Tiwari said in an exclusive interaction.
Scientists have decided to take cognisance of the vibrations or “noise” recorded by the seismometers, which need not be due to earthquakes but can also be because of vehicular traffic, animal movement, rain, river flows and so on.
These instruments are crucial for the safety of large infrastructure projects and hydroelectric power plants in this region. Currently, scientists are able to detect and assess a sudden flow 30-40 km away since the seismic wave is faster than the flow, and hence, the advance warning comes at least half an hour before.
The NGRI has started utilising Machine Learning to detect these observations faster than the normal approach because time becomes crucial during a warning, he said.
“We are working on cost-effective measures. Although our instruments can withstand minus-20 degrees Celsius, they need fuel cells when there is no sunlight. We are going to start in a modest manner in Uttarakhand and parts of Arunachal Pradesh,” Mr. Tiwari said.
Disaster Management in India
- A disaster is an unwelcome event caused by forces largely beyond human control that strikes abruptly and without warning, causing or threatening major disruption of life and property, including death and injury to many people
- A natural disaster is a catastrophic event produced by nature or the earth’s natural processes. Volcanic eruptions, earthquakes, tsunamis, floods, storms, tornadoes, and other geological events are only a few examples
- It has the greatest impact on rural society, as they are the most sensitive to economic shocks and have no other means of subsistence. Any natural hazard’s destructive potential is primarily determined by its spatial extent and severity
- Natural catastrophes have always presented a problem for the Indian government. With the advancement of cutting-edge research and development in the fields of environment and disaster management, it is now possible to foresee natural disasters and prevent their negative consequences
Types of Disasters in India
- Disasters are divided into two categories based on their cause: man-made and natural disasters. Disasters are classified as small or major based on their severity (in impact)
- Natural disasters are unexpected ecological disturbances or threats that exceed the afflicted community’s ability to respond and necessitate outside assistance
- Natural disasters are classified as geophysical events such as earthquakes and volcanic eruptions, hydrological events such as floods, meteorological events such as storms, climatological events such as heat and cold waves and droughts, and biological events such as diseases
- Hazardous material spills, fires, groundwater contamination, transportation accidents, construction failures, mining accidents, explosions, and acts of terrorism are examples of man-made catastrophes
- Atmospheric Disasters: This sort of natural catastrophe has its natural characteristics, such as the geographic region affected (areal extent), the time of year when it is most likely to occur, severity, and danger. A natural disaster or event, in most circumstances, involves many hazards: Tornadoes are spawned by strong thunderstorms; wind is a feature in thunderstorms, severe winter storms, tropical cyclones, and hailstorms; and avalanches can be triggered by snowfall from a severe winter storm
Natural Disasters in India
- In terms of socio-cultural and physical characteristics, India is vast and diversified. It is largely due to its enormous geographical extent, diverse environmental conditions, and cultural diversity
- Natural catastrophes are made more vulnerable by a large population and a variety of societal characteristics
Causes for Occurrence of various Disaster
The removal of forest cover and trees from a watershed zone has resulted in soil erosion, the extension of flood plains in the upper and intermediate courses of rivers, and groundwater depletion. The exploitation of land use, infrastructural expansion, technological advancement, and fast urbanisation have all resulted in increased pressure on natural resources.
Political issues include escalating nuclear ambitions, competition among countries to become superpowers, and the conquering of land, sea, and airspace. As a result, disasters such as the Syrian civil war, the Hiroshima nuclear bombing, and greater militarization of the oceans and outer space have occurred.
Rapid industrialization has led to global warming, as well as a rise in the frequency of extreme weather occurrences.
Erosion of river
River erosion and flooding affect about 12% of the country’s territory. Tsunamis and cyclones are a threat along about 5,700 kilometres of the 7,516 kilometre-long coastline. Droughts threaten over 68 per cent of the country’s cultivable land, and avalanches and landslides threaten the hilly regions.
India is also vulnerable to man-made disasters such as chemical, biological, radiological, and nuclear (CBRN) crises. Increased vulnerabilities associated with shifting demography and socioeconomic situations, unplanned urbanisation and development within high-risk areas, climate change environmental degradation, geological hazards, epidemics, and pandemics have exacerbated disaster threats in India.
All of these variables contribute to a situation in which disasters pose a severe threat to India’s economy, people, and long-term growth.
Earthquakes in India
An earthquake (also called a quake, tremor, or temblor) is the shaking of the Earth’s surface caused by a sudden release of energy in the lithosphere, which results in seismic waves.
- The Indian plate is shifting at a rate of around one centimetre per year towards the north and north-eastern directions, and its movement is constantly impeded by the Eurasian plate from the north
- As a result, both plates are said to be locked together, resulting in energy accumulation at various periods in time. Extreme energy accumulation causes tension, which eventually leads to a sudden release of energy, generating earthquakes along the Himalayan arc
Tsunamis and earthquakes occur as a result of centuries of accumulated energy within the ground. A tsunami (‘Tsu means harbour in Japanese, and ‘name means wave) is a succession of waves created by the displacement of a significant volume of water, usually an ocean
- Tropical cyclones are particularly dangerous to India’s coastal regions, resulting in frequent loss of life and property
- Tropical cyclones are triggered by atmospheric disturbances in the vicinity of a low-pressure area, which are characterised by rapid and often destructive air circulation
- Tropical cyclones and extratropical/temperate cyclones are the two types of cyclones classified geographically
India is one of the world’s most flood-prone countries. The monsoon, highly silted river systems, and steep and extremely erodible mountains, notably those of the Himalayan ranges, are the principal causes of flooding in this country. A flood is defined as an overflow of water that submerges normally dry ground. Floods in India are produced by a variety of variables, including topological, climatological/meteorological, and man-made factors
Droughts are consequences of variability of climate. Though drought causes small structural damage and has slow onset, it is considered a natural hazard. Drought in India is related to both water resource management and scarcity of rainfall.
- It is the movement of a mass of rock, rubble, or soil down a slope when the shear stress exceeds the material’s shear strength
- The Himalayas are thought to account for roughly 30% of all landslides in the world. The Himalayan Mountains are the world’s youngest and most powerful mountain range system
- It occurs when a complicated field of forces (stress is a force per unit area) is at work on a mass of rock or soil on a slope. It happens for a variety of reasons, including geological, morphological, physical, and human factors
5. Editorial-1: ‘No consensus’ is derailing counter-terror diplomacy
India’s decision to host the special session of the United Nations Security Council’s Counter-Terrorism Committee (UNSC-CTC) last month — held in Mumbai and New Delhi, it focused on new and emerging technologies — is one of a number of events planned by the Government to give its counter-terror diplomacy a greater push. Later this month, New Delhi will host the third edition of the “No Money For Terror” (NMFT) conference that will look at tackling future modes of terror financing. And in December, when India takes over the United Nations Security Council Presidency for the last time before its two-year term in the Council ends, India will chair a special briefing on the “Global Counter Terrorism Architecture”, looking at the challenges ahead.
While the focus is on the future of the fight against terrorism, it is important to look at some of the challenges that already exist, especially when the world’s attention is consumed by the war in Europe, dealing with the aftermath of COVID-19, and global economic recession.
GWOT – built on an unequal campaign
The first challenge is that the “Global War On Terrorism” (GWOT), as it was conceived by a post-9/11 United States is over with the last chapter written last year, as the United States negotiated with the Taliban, and then withdrew from Afghanistan. GWOT itself was built on an unequal campaign — when India had asked for similar help to deal with the IC-814 hijacking (December 1999) less than two years prior to the 9/11 attacks (with evidence now clear that those who the Atal Bihari Vajpayee government was forced to release were all terrorists who went on to help with planning, funding or providing safe havens to the al-Qaeda leadership), its pleas fell on deaf ears in the U.S., the United Kingdom, the United Arab Emirates (UAE), and of course, Pakistan, all of whom were hit by the same terrorists in later years.
Even after GWOT was launched, Pakistan’s role as the U.S.’s ally, and China’s “iron friend” ensured that the UNSC designations of those who threatened India the most, including Masood Azhar and Hafiz Saeed, never mentioned their role in attacks in India. The maximum India received in terms of global cooperation was actually from economic strictures that the Financial Action Task Force (FATF)’s grey list placed on Pakistan — Pakistan was cleared from this in October — indicating that the global appetite to punish Pakistan for terrorism has petered out.
In addition, the weak international reaction to the Taliban’s takeover of Kabul, and its persecution of women and minorities in the country, demonstrate rising fatigue levels in dealing with “another country’s problems”. The hard reality for India is that the future of counter-terrorism cooperation is going to be less cooperative, and counter-terror regimes such as the UNSC Resolutions 1267, 1373, etc. rendered outdated and toothless.
A blur over definition, new technologies
Next, the growing global polarisation over the Russia-Ukraine war is not only shifting the focus from terrorism but is also blurring the lines on what constitutes terrorism. The CTC meeting in Delhi, for example, was disrupted over Russia’s claims that the U.K. helped Ukraine launch drone attacks on Russia’s naval fleet in Sevastopol. The question remains: . if drone attacks by Yemeni Houthis on the UAE and Saudi Arabia’s oil infrastructure were condemned as terrorist attacks, why was the line drawn for drone attacks on Russian ships in a port used for loading grain, or a bridge bombing that put so many civilian lives at risk? On the other hand, how will Russia square up the possible recruitment of the former Afghan republic’s National Army Commando Corps into its war in Ukraine? Would not these commandos who once fought Taliban terrorists, now qualify as terrorists themselves?
Away from the battlefield, the polarisation has rendered the body tasked with global peace, paralysed: as the UNSC is unable to pass any meaningful resolutions that are not vetoed by Russia or western members, and China has been able to block as many as five terror designations requested by India and the U.S.
Perhaps the biggest opportunity lost due to the UNSC’s other preoccupations has been the need to move forward on India’s proposal, of 1996, of the Comprehensive Convention on International Terrorism (CCIT). While each conference, including the CTC meeting in Delhi, makes passing the CCIT a goal, very little progress has been made on the actual issues such as the definition of terrorism, concerns over human rights law conflicts, and the old debate on ‘freedom fighter vs terrorist’. Despite several changes in the draft made by India in 2016, consensus for the convention is still elusive.
The next challenge comes from emerging technologies and the weaponisation of a number of different mechanisms for terrorism purposes. Drones are already being used to deliver funds, drugs, weapons, ammunition and even improvised explosive devices. After the COVID-19 pandemic, worries have grown about the use of biowarfare, and Gain-of-Function (GoF) research to mutate viruses and vectors which could be released into targeted populations. In a future that is already here, the use of artificial intelligence (AI) systems and robotic soldiers makes it even easier to perpetrate mass attacks while maintaining anonymity. Terror financing uses bitcoins and cryptocurrency, and terror communications use social media, the dark web and even gaming centres.
The drivers of strife
Unless there is global consensus on regulating the use of these emergent technologies by all responsible states, it will be hard to distinguish their use from those by designated terror entities, or state-sponsored terrorism. Pakistan, Iran and North Korea are the most obvious examples of countries where the establishment has supported terrorist groups carrying out cross-border strikes, drone attacks and cyberwarfare. But what does one make of drone strikes by North Atlantic Treaty Organization countries in Yemen, Syria, Afghanistan, Somalia, where civilians have been killed, or Chinese government-run hackers who disable urban electric grids?
Nor are there any globally accepted norms on how and in what measure one is to respond to those attacks: whether it is the U.S.’s flattening of Afghanistan post-9/11, Pakistan’s aerial strikes on its own populations in Swat and Balochistan, India’s crossing of the UN-monitored Line of Control after the Uri attack (September 2016) and missile strikes on Pakistani territory (Balakot, in February 2019) after the Pulwama suicide bombing (February 2019), or Israel’s relentless bombardment of buildings in Gaza in retaliation for rocket attacks. Without some consensus on what constitutes terror, no war on terrorism can be truly global.
The truth is global inequity, food and energy shortages, climate change and pandemics are going to be the next big drivers of strife and violence in the world, where global stakeholders are at present distracted by territorial disputes and narrow political differences. Terrorist acts of the future will grow more and more lethal, will need fewer people to carry out, and with their sponsors having more and more anonymity. India, as host of these counter-terrorism events, and of the Shanghai Cooperation Organization (SCO) and the next G-20, must stop fighting the “last war” on terrorism, and steer the global narrative towards preparing for the next ones.
6. Editorial-2: After the dust, a clearer picture of Agnipath’s direction
The cloud of dust that rose following the announcement of the Agnipath scheme has now settled. Under this plan, around 50,000 soldiers, or ‘Agniveers’, will be recruited annually, with most leaving the service in four years. Only 25% will be retained in service for another 15 years, as permanent cadres. With the passage of time, it is now possible to review the scheme in a more mature and pragmatic manner, especially since the first batch of Agniveers are on the way to their training centres. The recruitment rallies conducted for the Agniveers have seen a positive response, both among boys and girls.
The times they are a-changin’
Nothing is ever constant and change will always be the order of the day. Therefore, our policies also need to change and be aligned with the future. To say that we must continue doing what we have been doing traditionally and not review our policies ever is not the correct approach. The merits or demerits of a particular policy can be debated and feedback given to make it more robust. But to denounce it outright smacks of a ‘status quoist’ attitude.
If we look at the past there have always been changes in the human resources (HR) policies of central government employees. In 1998, for example, the retirement age for all central government employees including armed forces personnel was increased across the board, by two years. Even then there was a hue and cry that it would lead to stagnation and so on. But now, more than 20 years later, it is business as usual. Does that mean this will never change? Not necessarily so.
There is already talk of raising the age of retirement to 65 years, in keeping with global trends. Similarly, the terms and conditions of service for our soldiers, sailors and airmen have undergone changes from the time to time. So, to say that the Agnipath scheme is tinkering with settled systems, or falling back on clichés such as “if it ain’t broke don’t fix it”, is self-defeating. The Agniveer rallies which saw a good turnout shows that our youth are motivated and willing to serve the cause of the nation.
Training and bonding
Our present system of almost one year of training — and even more for the technical arms — was devised when the standard of education of recruits was low, with an even lower technical threshold; therefore, it required time to drill concepts into them. Nowadays, all our youth are technologically savvy, which includes even those hailing from villages. Everyone has a smartphone; everyone uses digital payment platforms. To continue with old training methodologies is irrational. Optimising the training duration is very much a possibility. Given basic training, proficiency can be acquired on the job, and this is how it is done in many armies in the world. Since the Agnipath scheme was under formulation, this was an issue discussed with foreign service chiefs and delegations. In most cases, the training period varied between six to eight months. When a naval chief was asked about sending his sailors onboard ships with only six months training, his reply was in the affirmative: ‘where else can you learn better than on the high seas?’
Another aspect that has been much discussed is of bonding and esprit de corps, and whether the Agniveers will be able to deliver when the time comes. Without even giving them a chance, why are we questioning or doubting their abilities? As far as esprit de corps is concerned, the onus is on the units. There is a saying in the Indian Army that “there are no good units or bad units; only good officers and bad officers”. The definition of officers can be expanded to include ‘superiors’ — good or bad superiors. If the supervisory staff in a unit is good, they would make the Agniveers feel welcome, mould them and make them a part of the team.
Prior to the 1971 war, recruits were inducted into units after a curtailed training period; and within months, they were in the thick of battle. Within a month or two they could stand up and deliver and have that esprit de corps. So it shall be now. Young soldiers have more risk-taking abilities. Most gallantry award winners have had a younger profile. For instance, Subedar Major (Honorary Captain) Yogendra Singh Yadav, PVC, was only 19 years old, when he was awarded the Param Vir Chakra, following his specific act of gallantry on July 4, 1999 in the Kargil conflict. He survived despite many injuries.
Lateral absorption later
While formulating the Agnipath scheme, the aspect of lateral absorption into the Central Armed Police Forces, State police and even in other Ministries had been deliberated upon. However, it was felt that since this issue would come up only after four years, when the first lot of Agniveers would be due to be re-mustered, it could be considered later. Various Ministries would not only have to identify possible vacancies but also have to amend their respective service rules to include aspects such as enhanced ages of induction, ante-date benefits for services rendered and the like. Hopefully, aspects such as pension and medical cover would be automatically addressed. Following the announcement of the policy, there was a public outcry on the issue of the resettlement of the demobilised Agniveers. The Home Ministry and certain State governments straightaway announced 10% lateral induction. This was, therefore, not an afterthought, but it will certainly give urgency to the necessity of carrying out the necessary legally tenable and non-discriminatory revisions.
A United Nations report says that India’s population is among the youngest in the world. However, this demographic point is a dividend only if it is disciplined and imbued with a nationalistic fervour. This is the underlying philosophy of the Agnipath scheme, which will be of benefit to the nation, the Armed Forces and the individual. All new schemes have teething troubles and this one too will have its fair share of niggles. As and when these crop up, there will always be room for mid-course corrections. Even the Constitution of India has been amended 105 times. It requires collective resolve to make the Agnipath scheme a success.
7. Editorial-3: Content moderation through co-regulation
Social media platforms regularly manage user content on their website. They remove, prioritise or suspend user accounts that violate the terms and conditions of their platforms. When a user’s post is taken down or their account is suspended, they can challenge such a decision. Similarly, when users see harmful/ illegal content online, they can flag the issue with the platform. Some platforms have complaint redressal mechanisms for addressing user grievances. For instance, Facebook set up the Oversight Board, an independent body, which scrutinises its ‘content moderation’ practices.
The online ecosystem today
It was voluntary for platforms to establish a grievance redressal mechanism through their terms of service until the government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These mandate platforms to establish a grievance redressal mechanism to resolve user complaints within fixed timelines. Recently, the government amended these Rules and established Grievance Appellate Committees (GACs). Comprising government appointees, GACs will now sit in appeals over the platforms’ grievance redressal decisions. This signifies the government’s tightening control of online speech, much like Section 69A of the IT Act. The IT Act was passed in 2000 and Section 69A was introduced in 2008 when social media barely existed.
In today’s online environment, however, the existing government control on online speech is unsustainable. Social media now has millions of users. Platforms have democratised public participation, and shape public discourse. As such, large platforms have a substantial bearing on core democratic freedoms. Further, with the increasing reach of the Internet, its potential harms have also increased. There is more illegal and harmful content online today. Disinformation campaigns on social media during COVID-19 and hate speech against the Rohingya in Myanmar are recent examples. With increased stakes in free speech and with increasing online risks, a modern intermediary law must re-imagine the role of governments.
A modern intermediary law
Under such a law, government orders to remove content must not only be necessary and proportionate, but must also comply with due process. The recent European Union (EU) Digital Services Act (DSA) is a good reference point. The DSA regulates intermediary liability in the EU. It requires government take-down orders to be proportionate and reasoned. The DSA also gives intermediaries an opportunity to challenge the government’s decision to block content and defend themselves. These processes will strongly secure free speech of online users.
Most importantly, an intermediary law must devolve crucial social media content moderation decisions at the platform level. Platforms must have the responsibility to regulate content under broad government guidelines. Instituting such a co-regulatory framework will serve three functions. First, platforms will retain reasonable autonomy over their terms of service. Co-regulation will give them the flexibility to define the evolving standards of harmful content, thereby obviating the need for strict government mandates. This will promote free speech online because government oversight incentivises platforms to engage in private censorship. Private censorship creates a chilling effect on user speech. In turn, it also scuttles online innovation, which is the backbone of the digital economy.
Second, co-regulation aligns government and platform interests. Online platforms themselves seek to promote platform speech and security so that their users have a free and safe experience. For instance, during the pandemic, platforms took varied measures to tackle disinformation. Incentivising platforms to act as Good Samaritans will build healthy online environments.
Third, instituting co-regulatory mechanisms allows the state to outsource content regulation to platforms, which are better equipped to tackle modern content moderation challenges.
The modality of a co-regulatory model for content moderation must be mulled over. It is important that co-regulation, while maintaining platform autonomy, also makes platforms accountable for their content moderation decisions. Platforms as content moderators have substantial control over the free speech rights of users. Whenever platforms remove content, or redress user grievance, their decisions must follow due process and be proportionate. They must adopt processes such as notice, hearing and reasoned orders while addressing user grievances.
But due process is not enough. Social media content moderation tools are not limited to the removal or suspension of posts. Platforms often use tools for de-prioritisation of content to reduce the visibility of such content. Users are unaware of and unable to challenge such actions as they take place through platform algorithms that are often confidential. Platform accountability can be increased through algorithmic transparency.
An intermediary law should take the baton brought forward by the 2021 Rules. The GACs must be done away with because they concentrate censorship powers in the hands of government. A Digital India Act is expected to be the successor law to the IT Act. This is a perfect opportunity for the government to adopt a co-regulatory model of speech regulation of online speech.