1. Drafting a new Constitution is impossible

That the Centre is suppressing the powers of the States is not reason enough for a new statute

Recently, the Chief Minister of Telangana said India needs a new Constitution, as, according to him, governments at the Centre over the years have been suppressing the powers of the States. Being a citizen and a constitutional head of state, he was not wrong in exercising his fundamental right to express his views freely. Nor was what he said wrong: Central governments have indeed been suppressing the powers of the States in various ways. The Supreme Court, in judgments such as S.R. Bommai v. Union of India (1994) and Govt. Of NCT of Delhi v. Union of India (2018), has castigated governments at the Centre for this.

But the question is, can the people of India give themselves a new Constitution? Noted jurist Fali S. Nariman, in a lecture titled ‘The Silences in Our Constitutional Law’, delivered in 2005, rightly said, “We will never be able to piece together a new Constitution in the present day and age even if we tried: because innovative ideas — however brilliant, howsoever beautifully expressed in consultation papers and reports of commissions — cannot give us a better Constitution. In Constitution-making there are other forces that cannot and must never be ignored — the spirit of persuasion, of accommodation and of tolerance — all three are at a very low ebb today”. We can add a few more forces which cannot be ignored today, such as casteism, nepotism and corruption.

Nation first

This article highlights a few events that took place while India’s Constitution was drafted to argue how these events may never take place in the present scenario. The first is the appointment of B.R. Ambedkar as chairman of the Drafting Committee. Granville Austin, in his book The Indian Constitution: Cornerstone of a Nation, wrote that Ambedkar was originally elected to the Assembly as a member from Bengal, but lost his seat during Partition. He was subsequently elected from the Bombay Presidency at the behest of the Congress high command. This shows that the biggest party then had an accommodative spirit, which seems lacking today. Ambedkar was fighting to ensure rights for the depressed classes and, in his own words, he came to the Assembly to “safeguard the interests of the Scheduled Castes”. But he was trusted for his passion and talent and elected chairman of the Drafting Committee by the Constituent Assembly, which was dominated by the Congress. The result is the Constitution we see today, which safeguards the rights of majority and minority communities. Today, when caste and nepotism play a pivotal role in electing even a ward member, consensus over a new Constitution would be impossible.

It took two years, 11 months and 18 days to draft the present Constitution. During this period, the members read the constitutions of other nations, consulted constitutional experts, drafted the Constitution, debated it, redrafted it and approved it. During Constituent Assembly debates, if five minutes were wasted one day, the House would assemble five minutes earlier the next day and sit until night to complete pending work. This showed value for time, and value for work done for the nation. Now, all we see is ruckus and noise in Parliament, with little debate or discussion taking place on Bills. During Constituent Assembly debates, dissenters and hard-core critics were tolerated and their suggestions, if found apt, were accommodated. If their suggestions were not found apt, there would be a healthy debate. Now, Bills are passed without allowing Opposition members to express their views completely, let alone accommodating their suggestions.

Third, the members of the Constituent Assembly emerged from the clutches of colonial rule. They knew the sufferings that they and the nation had undergone under foreign rule and were determined to frame a Constitution, and spelled out fundamental rights, which allow every individual a right to live their life with liberty and dignity and challenge the state’s arbitrary decisions before an independent judiciary. Today’s leaders seem to lack that spirit. Members of the Constituent Assembly chose the nation first; today’s leaders tend to choose their party first.

Fourth, the Constitution states that India is a “Sovereign Socialist Secular Democratic Republic”. It protects the rights of every section of society. On the other hand, today’s leaders give priority to particular ideologies and castes. Given this, drafting a new Constitution will be a chaotic exercise and will shut the voices of some sections, especially the vulnerable.

Fifth, and most importantly, an unelected body was trusted by the Constitution framers to declare the law. The purpose behind choosing an unelected body was that, by its nature of being not answerable to anyone except the Constitution, the judiciary can adjudicate disputes in an independent, free, fair and impartial manner. Today, leaders may choose to become judges as well as rulers. For instance, through the Constitution (Thirty-Second Amendment) Act, 1973, a proviso to clause 5 of Article 371D was inserted which gave power to the Andhra Pradesh government to modify or annul any order passed by the Administrative Tribunal, constituted to deal with service matters in which the government is a party. This Tribunal replaced the High Court. When the government is party to the litigation and when the Tribunal is exercising the powers of the High Court, how can the government be given power to override the decisions of the Tribunal? Fortunately, the Supreme Court declared this proviso as unconstitutional in P. Sambamurthy v. State of A.P. (1986). There are other such examples.

A strong Centre

Before independence, India comprised over 550 princely States, suffered from the problems created by Partition and faced a looming economic crisis. Thus, the Constituent Assembly’s members tilted towards a strong Centre with a blend of cooperative federalism. It is true that the governments at the Centre abuse their powers to cripple Opposition-ruled States, but that does not call for creating a new Constitution. It calls for seeking mandate from the people to elect regional parties in general elections so that States can have dominance in the Union, besides approaching the Supreme Court under Article 131 whenever the need arises to resolve conflicts between the Centre and State.

The Chief Minister should remember that if he could become the Chief Minister of Telangana, it is only because of the present Constitution, as despite the Assembly of united Andhra Pradesh rejecting the resolution in 2013 to bifurcate Andhra Pradesh, it was Parliament, which by exercising powers conferred under Article 3 of the Constitution, carved out the two States.

2. ‘Money laundering a global problem’

Accused run to smaller nations where they can buy citizenship, Centre tells SC

The government on Wednesday informed the Supreme Court that ₹18,000 crore was confiscated under the Prevention of Money Laundering Act (PMLA) from fugitive businessmen Vijay Mallya, Nirav Modi and Mehul Choksi, and returned to banks.

Appearing before a Bench, Solicitor-General Tushar Mehta submitted that money laundering is a “global problem”. The government said the total proceeds of crime in PMLA cases pending before the court is ₹67,000 crore.

Mr. Mehta said the number of PMLA cases investigated by the Enforcement Directorate (ED) has varied in five years, from 111 to 981 in 2015-16 and 2020-21, respectively.

“Very small number of cases are being taken up for investigation under the PMLA as compared to annual registration of the cases under the Money Laundering Act in the UK (7,900), the U.S. (1,532), China (4,691), Austria (1,036), Hong Kong (1,823), Belgium (1,862) and Russia (2,764),” he submitted.

He said “corruption in high offices is a major facilitator of money laundering”. This is especially true in the developing world. Mr. Mehta said corruption is an “insidious player which undermines democracy”. Money laundering, in turn, fuels organised crime and terrorism.

UN report

The Solicitor-General quoted a United Nations report which said the proceeds of crime being laundered amount to $2.1 trillion, which accounts for 3.67% of the global GDP. He said three “supra-national or transnational” crimes which have brought together the global community are narcotics, money laundering and terrorism.

Mr. Mehta said the legislative intent against sharing the ECIR (Enforcement Case Information Report) with accused was to prevent them from wiping out evidence, which is anyway hard to get, with the “click of a button”.

He highlighted how people accused of money laundering run to small nations with no extradition treaty with India where they can buy citizenship. He said the global tolerance to money laundering has come down. This has been evident in the increasing number of predicate offences.

The Centre was responding to a batch of petitions before the court alleging that the PMLA has evolved as the government’s “hatchet” law in recent years, considering the series of raids and arrests of politicians, their relatives and activists.

Prevention of Money Laundering Act:

• Money laundering is defined as the illegal process of converting money generated through criminal activities, such as drug trafficking or terrorist funding, to appear to have come from a legitimate source. The money from the criminal activity is considered ‘dirty’, and the laundering process makes it look clean.
• Prevention of Money Laundering Act was enacted as a response to India’s global commitment (including the Vienna Convention) to curb the menace of money laundering.
• Objectives of the Act – PMLA was enacted in 2002 and it came into force in 2005 , to curb money laundering (process of converting black money into white) and to provide for seizure of property derived from money-laundering. There are mainly 3 objectives of PMLA:
  • To prevent and control money laundering.
  • To confiscate and seize the property obtained from the laundered money.
  • To deal with any other issue connected with money laundering in India.
• Adjudication Authority – The Director or officer above the rank of Deputy Director can attach property believed to be “proceeds of crime” for 180 days. Such an order is required to be confirmed by an independent Adjudicating Authority.
  • The Adjudicating Authority is appointed by the central government. It decides whether the property attached or seized is involved in money laundering.
  • The Adjudicating Authority shall not be bound by the procedure laid down by the Code of Civil Procedure,1908, but shall be guided by the principles of natural justice and subject to the other provisions of PMLA.
• Punishment – The Act prescribes that any person found guilty of money-laundering shall be imprisoned for a minimum of 3 years and a maximum of 7 years, and If the crime of money laundering is involved with the Narcotic Drugs, the punishment can go up to 10 years, along with fine.
• Proof – The burden of proof lies with the accused, who has to prove that the suspected property/assets have not been obtained through money laundering.
• Appellate Tribunal – An Appellate Tribunal appointed by the Government is given the power to hear appeals against the orders of the Adjudicating Authority. Orders of the tribunal can be appealed in the appropriate High Court .
• Special Court – Provision for establishing special court by the Union government under Prevention of Money Laundering Act, 2002 (PMLA) .
• Financial Intelligence Unit – India (FIU-IND) – It was set by the Government as the central national agency responsible for receiving, processing, analyzing and disseminating information relating to suspect financial transactions.
  • FIU-IND is also responsible for coordinating and strengthening efforts of national and international intelligence, investigation and enforcement agencies.
  • FIU-IND is an independent body reporting directly to the Economic Intelligence Council (EIC) under the Finance Minister.

Enforcement Directorate:

• It is responsible for enforcing economic laws and fighting economic crime in India.
• It is part of the Department of Revenue, Ministry of Finance.
• The prime objective of the Enforcement Directorate is to enforce the provisions of; Foreign Exchange Management Act, 1999 (FEMA) and Prevention of Money Laundering Act, 2002 (PMLA).

3. U.S. and allies unveil more Russia sanctions

EU adds members of Parliament to blacklist; U.K. bans trading of new Russian bonds in security markets

The United States and its allies unveiled more sanctions against Russia on Wednesday over its recognition of two separatist areas in eastern Ukraine, while making clear they were keeping tougher measures in reserve in case of a full-scale invasion by Moscow.

European Union sanctions to take effect on Wednesday would add all members of Russia’s Lower House of Parliament who voted to recognise the separatist regions in Ukraine to a blacklist, freezing their assets and banning travel.

Britain followed the U.S. in announcing new restrictions banning Russia from the issuing of new bonds in its security markets.

The steps follow measures announced on Tuesday, including freezing the approval of a new Russian gas pipeline by Germany, and imposing new U.S. sanctions on Russian banks.

But none of the measures announced so far targets President Vladimir Putin, or is expected to have severe consequences for Moscow, which is sitting on more than $630 billion in international reserves. Oil prices eased from Tuesday’s seven-year highs as it became clear the first wave of sanctions were unlikely to disrupt oil supplies. Global stocks broke a four-day slide and demand for safe-haven assets waned.

Russia said Wednesday that new U.S. sanctions will meet a “strong response”.

“There should be no doubt — sanctions will meet a strong response, not necessarily symmetrical, but well-calibrated and sensitive for the American side,” the Russian Foreign Ministry said.

“There will be even more tough sanctions on key oligarchs, on key organisations in Russia, if there is a full scale invasion of Ukraine,” British Foreign Secretary Liz Truss said.

What are economic sanctions?

Economic sanctions are defined as the withdrawal of customary trade and financial relations for foreign- and security-policy purposes. Sanctions may be comprehensive, prohibiting commercial activity with regard to an entire country, like the long-standing U.S. embargo of Cuba, or they may be targeted, blocking transactions by and with particular businesses, groups, or individuals.

Since 9/11, there has been a pronounced shift toward targeted or so-called smart sanctions, which aim to minimize the suffering of innocent civilians. Sanctions take a variety of forms, including travel bans, asset freezes, arms embargoes, capital restraints, foreign aid reductions, and trade restrictions. (General export controls [PDF], which are not punitive, are often excluded from sanctions discussions.)

When are sanctions used?

National governments and international bodies such as the United Nations and European Union have imposed economic sanctions to coerce, deter, punish, or shame entities that endanger their interests or violate international norms of behavior. Sanctions have been used to advance a range of foreign policy goals, including counterterrorism, counternarcotics, nonproliferation, democracy and human rights promotion, conflict resolution, and cybersecurity.

Sanctions, while a form of intervention, are generally viewed as a lower-cost, lower-risk course of action between diplomacy and war. Policymakers may consider sanctions as a response to foreign crises in which the national interest is less than vital or where military action is not feasible. Leaders have, on occasion, issued sanctions while they evaluated more punitive action. For example, the UN Security Council imposed comprehensive sanctions against Iraq just four days after Saddam Hussein’s invasion of Kuwait in August 1990. The Security Council did not authorize the use of military force until months later.

What is the sanctions process at the UN?

As the UN’s principal crisis-management body, the Security Council may respond to global threats by cutting economic ties with state and nonstate groups. Sanctions resolutions must pass the fifteen-member council by a majority vote and without a veto from any of the five permanent members: the United States, China, France, Russia, and the United Kingdom. The most common types of UN sanctions, which are binding for all member states, are asset freezes, travel bans, and arms embargoes.

UN sanctions regimes are typically managed by a special committee and a monitoring group. The global police agency Interpol assists some sanctions committees, particularly those concerning al-Qaeda and the Taliban, but the UN has no independent means of enforcement and relies on member states, many of which have limited resources and little political incentive to prosecute noncompliance. Anecdotal evidence suggests that enforcement of UN sanctions is often weak.

Prior to 1990, the council imposed sanctions against just two states: Southern Rhodesia (1966) and South Africa (1977). However, since the end of the Cold War, the body has used sanctions more than twenty times, most often targeting parties to an intrastate conflict, as in Somalia, Liberia, and Yugoslavia in the 1990s. But despite this cooperation, sanctions are often divisive, reflecting the competing interests of world powers. For instance, since 2011, Russia and China have vetoed several Security Council resolutions concerning the conflict in Syria, some of which could have led to sanctions against President Bashar al-Assad’s regime.

What is the sanctions process in the EU?

The European Union imposes sanctions (known more commonly in the twenty-eight-member bloc as restrictive measures) as part of its Common Foreign and Security Policy. Because the EU lacks a joint military force, many European leaders consider sanctions the bloc’s most powerful foreign policy tool. Sanctions policies must receive unanimous consent from member states in the Council of the European Union, the body that represents EU leaders.

Since its inception in 1992, the EU has levied sanctions more than thirty times (in addition to those mandated by the UN). Analysts say the comprehensive sanctions the bloc imposed on Iran in 2012—which it later lifted in 2015 as part of the nuclear agreement—marked a turning point for the EU, which had previously sought to limit sanctions to specific individuals or companies.

Individual EU states may also impose harsher sanctions independently within their national jurisdiction.

4. Understanding the Draft India Data Accessibility & Use Policy, 2022

What are the main provisions of the draft document? Is the Government going to monetise public data?

The MEITY on February 21 released a policy proposal titled as, “Draft India Data Accessibility & Use Policy, 2022”. The policy objectives mentioned in this draft are primarily commercial in nature. As the generation of citizen data is slated to increase exponentially in the next decade, the Government is looking to license and sell public data to the private sector.

The policy will be applicable to all data and information created and collected by the Central Government. It would also allow State governments to adopt its provisions. Its operationalisation will be achieved through the establishment of a India Data Office (IDO) for overall management. A India Data Council will also be formed as a consultative body. The policy strategy is to make Government data open by default and then maintain a negative list of datasets which cannot be shared.

There are privacy issues which need to be addressed. Apart from that, with the adoption of the language of open data the Government strays from its core principle of providing transparency towards its citizens. Other issues include questions of how the Centre and the State are going to share the proceeds from the sales.

The story so far: The Ministry of Electronics and Information Technology (MEITY) on February 21, 2022 released a policy proposal titled as, “Draft India Data Accessibility & Use Policy, 2022”. The policy aims to, “radically transform India’s ability to harness public sector data”. The proposals of the Draft Data Accessibility Policy has been in the spotlight for permitting the licensing and sale of public data by the Government to the private sector.

Why has the Draft Data Accessibility Policy been proposed?

The generation of citizen data is slated to increase exponentially in the next decade and become a cornerstone of India’s $5 trillion-dollar digital economy. The policy objectives and purpose drawn from this understanding are primarily commercial in nature following the rationale of the National Economic Survey, 2019 which at Chapter 4 noted the commercial benefits of Government data exploitation, notably, “The private sector may be granted access to select databases for commercial use…Given that the private sector has the potential to reap massive dividends from this data, it is only fair to charge them for its use.” It aims to harness the economic value of the generated data.

A background note that accompanies the policy outlines existing bottlenecks in data sharing and use which includes the absence of a body for policy monitoring and enforcement of data sharing efforts, absence of technical tools and standards for data sharing, identification of high value datasets and licensing and valuation frameworks. It indicates a way forward to unlock the high value of data across the economy, congruent and robust governance strategy, making Government data interoperable and instilling data skills and culture.

Beyond this, there is a lack of transparency with the absence of a consultation paper or a disclosure of the list of stakeholders who have been consulted which as per a public notice by MEITY include, “academia, industry, and Government”.

How does the Draft Data Accessibility Policy aim to achieve its goals?

The policy will be applicable to all data and information created, generated, collected and/or archived by the Central Government. It would also allow State governments to adopt its provisions. Its operationalisation will be achieved through the establishment of a India Data Office (IDO) under MEITY for overall management, with each government entity designating a Chief Data Officer. In addition to it, a India Data Council will be formed as a consultative body for tasks that include finalisation of standards. It is not indicated whether the India Data Council will have non-governmental participation from industry, civil society or technologists.

The policy strategy is to make Government data open by default and then maintain a negative list of datasets which cannot be shared. Definition of more sensitive categories which should have restricted access is left to the independent government ministries. In addition to this, existing data sets will be enriched or processed to attain greater value and termed as high-value datasets. Government datasets including high-value datasets will be shared freely within government departments and also licensed to the private sector. As a measure of privacy protection, there is a recommendation for anonymisation and privacy preservation.

What are the privacy issues with the Draft Data Accessibility Policy?

India does not have a data protection law that can provide accountability and remedy for privacy violations such as coercive and excessive data collection or data breaches. Here, inter-departmental data sharing poses concerns related to privacy since the open government data portal which contains data from all departments may result in the creation of 360 degree profiles and enable state-sponsored mass surveillance. Even though the policy considers anonymisation as a desired goal there is a lack of legal accountability and independent regulatory oversight. There is also a failure to consider scientific analysis and the availability of automated tools for the re-identification of anonymous data. This becomes important given the existing financial incentives of licensing to the private sector, where the Government is acting as a data broker. Here the commercial value of the data increases with greater amounts of personal data. The absence of an anchoring legislation further leads to the policy not being able to fulfill the threshold of legality for state intervention into privacy which was put in place by the Supreme Court of India in its landmark right to privacy decision.

Are there any other issues with the policy?

There are three additional issues with the policy document that merit consideration.

While adopting the language of open data it strays from its core principle of providing transparency of the Government towards its citizens. There is only one mention of transparency and little to no mention of how such data sharing will help ensure demands for accountability and redress.

The second issue is that the policy bypasses parliament as it contemplates large scale data sharing and enrichment that will be borne from public funds. Further, the constitution of offices, prescription of standards that may be applicable not only to the Central government, but even State governments and schemes administered by them require legislative deliberation.

This brings us to the third and final issue of federalism. The policy, even though it notes that State governments will be, “free to adopt portions of the policy,” does not specify how such freedom will be achieved. It becomes relevant, if specific standards are prescribed by the Central government for data sharing, or as a precondition to financial assistance. There is also the absence of any comment on whether data gathered from States may be sold by the Central government and whether the proceeds from it will be shared with the States.

How to participate and send in your views?

The draft data access policy accompanied by a background note is available on the website of MEITY and open for public consultation till March 18, 2022. For participation, comments can be sent by email to Ms. Kavita Bhatia, Scientist F at the email kbhatia@gov.in and pmu.etech@meity.gov.in.

5. NASA’s plan to decommission the International Space Station

Why is NASA planning to de-orbit the ISS? How will the space station be de-assembled?

NASA plans to decommission the International Space Station (ISS) by 2031. The ISS was launched in 1998 as part of joint efforts by the U.S., Russia, Japan, Canada and Europe. It operates in low-earth orbit.

The limitations on the life-cycle of the station are catching up. The ISS goes through 16 rotations of the earth per day, causing extreme temperature changes on the exterior. This orbital thermal cycling, coupled with dynamic loading, affects the longevity of the primary structure of the space station.

NASA plans to remove the ISS from its orbit around the earth and eventually plunge it into the ocean, leading it to Point Nemo over the South Pacific Oceanic Uninhabited Area (SPOUA).

The story so far: The National Aeronautics and Space Administration (NASA) has announced plans to retire and decommission the International Space Station (ISS) by 2031. The U.S. space agency has detailed its goals for the next decade in the International Space Transition Report as it aims to hand over operations to commercial organisations. NASA has listed an elaborate outline of the plan to decommission the space station. Other international partners that operate the ISS are, however, yet to approve it.

What is the ISS?

The ISS was launched in 1998 as part of joint efforts by the U.S., Russia, Japan, Canada and Europe. The space station was assembled over many years, and it operates in low-earth orbit. Since its inception, the ISS has served as a laboratory suspended in space and has aided multiple scientific and technological developments.

The idea of a space station originated in the 1984 State of the Union address by former U.S. President Ronald Reagan. “A space station will permit quantum leaps in our research in science, communications, and in metals and lifesaving medicines which could be manufactured only in space. We want our friends to help us meet these challenges and share in their benefits. NASA will invite other countries to participate so we can strengthen peace, build prosperity, and expand freedom for all who share our goals,” he had said.

ISS has consistently maintained human presence for the past 21 years, providing astronauts with sophisticated technologies for scientific research.

Why is NASA planning to decommission the ISS?

The ISS was originally built to operate for 15 years. The space station has already surpassed that checkpoint by being active for 21 years, with plans to continue operations till 2030. However, the limitations on the life-cycle of the station are catching up. The ISS goes through 16 rotations of the earth per day, causing extreme temperature changes on the exterior. The side facing the sun can get heated up to 121°C while the temperature on the opposite, darker side can fall to –157°C, causing intense expansion and contraction of the building material. This orbital thermal cycling, coupled with dynamic loading, affects the longevity of the primary structure of the space station. The technical lifetime is also limited by parts like radiators, modules and truss structures that tend to degrade over time.

NASA is planning to transition operations in low-earth orbit to private players and focus energies on its missions to explore the moon and Mars.

What is the procedure to de-orbit the ISS?

NASA plans to remove the ISS from its orbit around the earth and eventually plunge it into the ocean at a point farthest from human civilisation. The space agency will use the dual method of natural orbit decay and a re-entry manoeuvre to bring an end to the ISS as we know it.

According to the plan, the earth’s natural atmospheric drag will be used in lowering the altitude of the ISS while setting up the de-orbit. The space station operators will then provide the final push to it to lower the structure to the maximum possible height and ensure safe re-entry into the earth’s atmosphere, leading it to Point Nemo over the South Pacific Oceanic Uninhabited Area (SPOUA). The exterior of the modules is expected to melt when the debris re-enters the earth’s atmosphere. The exposed internal hardware is also expected to burn or vaporise during the process. It is believed that denser components like the truss sections will survive the re-entry and fall into the SPOUA. Alternative options like disassembly and return to the earth, boost to a higher orbit, and random re-entry were also considered.

The ISS is a huge structure — almost the size of a football field — and it was not designed to be disassembled easily in space. This process would have posed huge logistical and financial challenges. ISS cannot be decommissioned by boosting to a higher orbit because of its large mass and low operational altitude. The station currently operates in low-earth orbit above 400 km in altitude, at a point where it still experiences atmospheric drag and requires re-boosts to continue in its orbit. The station also has a mass of over 4,30,000 kg. Existing propulsion systems do not have the capacity to raise the station’s altitude to a high target and escape low-earth orbit. The random re-entry method was discarded since it carries a huge risk for the human population on the ground.

Are there any environmental hazards associated with the plan?

NASA claims that the debris of the ISS that survives the re-entry will settle on the ocean floor and not cause any substantial long-term impact.

What is the future of space stations?

As the ISS plans to end operations in space, new players are already lining up to replace it. In January 2022, China announced that its space station will be ready for operations this year. Blue Origin, the aerospace company founded by Jeff Bezos, has also announced its plans to build Orbital Reef, a commercially developed, owned, and operated space station in low-earth orbit. Blue Origin is working alongside Sierra Space on the project.

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