1. Why no decision on list sent by Collegium, SC asks government

Recommendations pending for six to 18 months

The Supreme Court on Thursday asked the government to clarify on the status of 55 recommendations made by the Collegium for judicial appointments to High Courts six months to nearly a year-and-a-half ago.

Of the pending recommendations, 44 were made to fill vacancies in the Calcutta, Madhya Pradesh, Gauhati, Rajasthan and Punjab High Courts.

These recommendations have been pending with the government for over seven months to a year.

The remaining 10 names have been pending with the government despite their reiteration by the Collegium. They include five for the Calcutta High Court pending for one year and seven months. The recommendations of four names made by the Collegium to the Delhi High Court have been pending for seven months.

“This is a matter of grave concern… When do you propose to take a decision?” a Special Bench, led by Chief Justice of India Sharad A. Bobde, asked Attorney General K.K. Venugopal. The total sanctioned strength in the 25 High Courts is 1,080. However, the present working strength is 661 with 419 vacancies as on March 1.

The court asked Mr. Venugopal to enquire with the Union Ministry of Law and Justice and make a statement on April 8 about their status. The Bench handed over to Mr. Venugopal a chart containing the details of the 55 recommendations.

Justice Sanjay Kishan Kaul said on the 10 recommendations, some of which date back to a year-and-a-half, that “neither have they been appointed nor have you (government) given us a response”.

Justice Kaul, who was accompanying the Chief Justice and Justice Surya Kant, said the “thought process” of both the government and the Collegium should be modulated. He said a time frame needed to be fixed for both the Collegium and the Ministry to complete the appointment process.

Senior advocate and president of the Supreme Court Bar Association Vikas Singh said there was a need to institutionalise a process for considering advocates practising in the top courts to judgeships in the High Courts.

The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.

High Courts of India

The highest judicial court in a state is the High Court. It is termed as the second-highest in the country after the Supreme Court of India. Currently, India has 25 High Courts established in different states of the country.

Constitution of High Court

Under British rule, each High Court has a Chief Justice and maximum 15 other puisne judges. But later certain changes were brought about in the composition of the High Court in India:

• Every High Court shall have  a Chief Justice appointed by the President
• Unlike before, there was no fixed number of Judges who could be appointed for each High Court
• Additional Judges can also be appointed for the clearance of cases pending in the court. But their tenure cannot exceed more than two years

One thing that must be noted is that no one above the age of 62 years can be appointed as a High Court Judge. There is no uniformity among the High Courts regarding the number of Judges they will have. A smaller state shall have less number of judges in comparison to a larger state.

Powers and Functions of the High Court

The High Court is the highest court in a state in India. Articles 214 to 231 in the Indian Constitution talk about the High Courts, their organisation and powers. The Parliament can also provide for the establishment of one High Court for two or more states. 

For instance, Haryana, Punjab and the Union Territory of Chandigarh have a common High Court. The northeastern states also have one common High Court. In addition, Tamil Nadu shares a High Court with Puducherry.

The High Courts of Calcutta, Madras and Bombay were established by the Indian High Courts Act 1861.

High Court Jurisdiction

The various kinds of the jurisdiction of the High Court are briefly given below:

Original Jurisdiction

• The High Courts of Calcutta, Bombay and Madras have original jurisdiction in criminal and civil cases arising within these cities.
• An exclusive right enjoyed by these High Courts is that they are entitled to hear civil cases which involve property worth over Rs.20000.
• Regarding Fundamental Rights: They are empowered to issue writs in order to enforce fundamental rights.
• With respect to other cases: All High Courts have original jurisdiction in cases that are related to will, divorce, contempt of court and admiralty.
• Election petitions can be heard by the High Courts.

Appellate Jurisdiction

• In civil cases: an appeal can be made to the High Court against a district court’s decision.
• An appeal can also be made from the subordinate court directly if the dispute involves a value higher than Rs. 5000/- or on a question of fact or law.
• In criminal cases: it extends to cases decided by Sessions and Additional Sessions Judges.

• If the sessions judge has awarded imprisonment for 7 years or more.
• If the sessions judge has awarded capital punishment.
• The jurisdiction of the High Court extends to all cases under the State or federal laws.
• In constitutional cases: if the High Court certifies that a case involves a substantial question of law.

As a Court of Record

• High Courts are also Courts of Record (like the Supreme Court).
• The records of the judgments of the High Courts can be used by subordinate courts for deciding cases.
• All High Courts have the power to punish all cases of contempt by any person or institution.

Administrative Powers

1. It superintends and controls all the subordinate courts.
2. It can ask for details of proceedings from subordinate courts.
3. It issues rules regarding the working of the subordinate courts.
4. It can transfer any case from one court to another and can also transfer the case to itself and decide the same.
5. It can enquire into the records or other connected documents of any subordinate court.
6. It can appoint its administration staff and determine their salaries and allowances, and conditions of service.

Power of Judicial Review

High Courts have the power of judicial review. They have the power to declare any law or ordinance unconstitutional if it is found to be against the Indian Constitution.

Writ Jurisdiction of High Court

Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition, and quo warrento for the enforcement of the fundamental rights of the citizens and for any other purpose. Read in detail about the following –

• Habeas Corpus
• Writ of Mandamus

The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right. The high court can issue writs to any person, authority and government not only within its territorial jurisdiction but also outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction (15th Constitutional Amendment Act of 1963).

In the Chandra Kumar case (1997), the Supreme Court ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution. Hence, it cannot be ousted or excluded even by way of an amendment to the Constitution.

In Shah Faesal’s Case, his case is justified because the cause of action happened in Delhi and then he was taken to outside the territory of Delhi.

Power of Certification

A High Court alone can certify the cases fit for appeal before the Supreme Court.

High Court Autonomy

The independence of the High Courts can be corroborated by the points given below:

1. Appointment of Judges: The appointment of judges of the High Courts lies within the judiciary itself and is not connected to the legislature or the executive.
2. Tenure of the Judges: High Court judges enjoy the security of tenure till the age of retirement, which is 62 years. A High Court cannot be removed except by an address of the President.
3. Salaries and allowances: The High Court judges enjoy good salaries, perks and allowances and these cannot be changed to their disadvantage except in case of a financial emergency. The expenses of the High Court are charged on the Consolidated Fund of the State, which is not subject to vote in the state legislature.
4. Powers: The Parliament and the state legislature cannot cut the powers and jurisdiction of the High Court as guaranteed by the Constitution.
5. Conduct of judges: Unless a motion of impeachment has been moved, the conduct of the High Court judges cannot be discussed in the Parliament.
6. Retirement: After retirement, High Court judges cannot hold an office of emolument under the Government of India or that of a state. There is an exception to this clause, however, when, with the consent of the Chief Justice of India, retired judges can be nominated to a temporary office, and in the situation of emergencies.

2. Das sees no reason to cut FY22 forecast

Vaccines, COVID-19 awareness, lesser likelihood of lockdown offer insurance on growth: RBI Governor

Despite the fresh threat from rising COVID-19 cases, the Reserve Bank of India (RBI) chief maintained the central bank’s forecast for GDP growth in FY22 at 10.5%.

RBI Governor Shaktikanta Das on Thursday said though the renewed surge in COVID-19 cases in many parts of India was a concern, this time around growth would continue ‘unabated’.

He said the Reserve Bank remained ‘fully committed’ to use all policy tools to secure a robust recovery of the economy from the debilitating effects of the pandemic.

“We have to keep in mind that this time around, compared to where we were last year, let us say in March or April, we have some additional insurance against the impact of the COVID-19 pandemic,” he said in his inaugural virtual address at ‘The Times Network India Economic Conclave 2021’.

“The first is that the two vaccines which are being rolled out,” he said, adding that the speed of the roll-out had been ‘very fast’ and about 5 crore people had already been vaccinated.

“The second aspect is that overall, by and large people are now used to the COVID-19 protocols. So one would expect that people who have lowered their guard would step up their guard against the spread of COVID-19 [virus],” he said.

“And third, at this point… one does not foresee a kind of lockdown that we had experienced last year. Because last year, it came as a huge shock. This time we all know what the pandemic is all about, notwithstanding some new strains which have developed,” he added.

‘Preliminary analysis’

Mr. Das asserted, “revival of economic activity which has happened should continue unabated going forward and I don’t foresee [a downward revision], although I should not be saying this before the details are presented by our research teams. But my understanding and our preliminary analysis show that the growth rate of 10.5% for next year, which we had given, would not require a downward revision.”

To a question on keeping rising bond yields in check, Mr. Das said, “The relationship between the central bank and bond markets need not be combative, it has to be cooperative. We have been emphasising time and again that there should be an orderly evolution of the yield curve and not sudden spikes or any knee-jerk reaction to certain incoming numbers.”

Stating that the government’s borrowings for the next year would remain in the same range as it had been this year, Mr. Das said that the RBI would manage the borrowings and that there should not be any ‘disorder in the yield curve’.

Economic Reforms

• The economic reforms were initiated in 1991.
• Economic reforms denote the process in which a government prescribes declining role for the state and expanding role for the private sector in an economy.
• It is safer to see economic reform as a policy shift in an economy from one to another or ‘alternative development strategies’.

Economic reforms In India

• On July 23, 1991, India launched a process of economic reforms in response to a fiscal and balance-of-payment (BoP) crisis.
• The reforms were historic and were going to change the very face and the nature of the economy in the coming times.
• The reforms and the related programmes are still going on with changing emphasis and dimensions.
• Back in the mid-1980s, the governments had taken its first steps to economic reforms.
• While the reforms of the 1980s witnessed rather limited deregulation and ‘partial liberalization of only a few aspects of the existing control regime, the reforms started in early 1990s in the fields of industries, trade, investment and later to include agriculture, were much ‘wider and deeper’.
• Though liberal policies were announced by the governments during the reforms of the 1980s itself, with the slogan of ‘economic reforms’, it was only launched with full conviction in the early 1990s.
• But the reforms of the 1980s, which were under the influence of the famous ‘Washington Consensus’ ideology had a crippling impact on the economy.
• The whole Seventh Plan (1985–90) promoted further relaxation of market regulations with heavy external borrowings to increase exports (as the thrust of the policy reform).
• By now as the benefits of the reforms have accrued to many, the criticism has somewhat calmed down, but still the reform process is considered as ‘anti-poor’ and ‘pro-rich’.
• The need of the hour is to go for ‘distributive growth’, though the reform has led the economy to a higher growth path.

Reform measures

The economic reform programme, that India launched, consisted of two categories of measures:

1. Macroeconomic Stabilization Measures

• It includes all those economic policies which intend to boost the aggregate demand in the economy—be it domestic or external.
• For the enhanced domestic demand, the focus has to be on increasing the purchasing power of the masses, which entails an emphasis on the creation of gainful and quality employment opportunities.

2. Structural Reform Measures

• It includes all the policy reforms which have been initiated by the government to boost the aggregate supply of goods and services in the economy.
• It naturally entails unshackling the economy so that it may search for its own potential of enhanced productivity.
• For the purchasing capacity of the people to be increased, the economy needs increased income, which comes from increased levels of activities.
• Income so increased is later distributed among the people whose purchasing power has to be increased
• This will take place by properly initiating a suitable set of macroeconomic policies.

The LPG

• The process of reforms in India has to be completed via three other processes namely, liberalization, privatization and globalization, known popularly by their short-form, the LPG.
• These three processes specify the characteristics of the reform process India initiated.
• Precisely seen, liberalization shows the direction of reform,
• Privatization shows the path of reform and globalization shows the ultimate goal of the reform.

Liberalization

• The ideology was the product of the breakdown of feudalism and the growth of a market or capitalist society in its place, which became popular in economics via the writings of Adam Smith and got identified as a principle of laissez-faire.
• Pro-market or pro-capitalistic inclination in the economic policies of an economy is the process of liberalization.
• The most suitable example of this process could be China of the mid-1980s when it announced its ‘open door policy’.
• The process of decreasing traits of a state economy and increasing traits of a market economy is liberalization.
• In the Indian case the term liberalisation is used to show the direction of the economic reforms—with decreasing influence of the state or the planned or the command economy and increasing influence of free market or the capitalistic economy.
• It is a move towards capitalism. India is attempting to strike its own balance of the ‘state-market mix’.
• It means, even if the economic reforms have the direction towards market economy it can never be branded a blind run to capitalism.

Privatization

• The policies through which the ‘roll back’ of the state was done included deregulation, privatization and introduction of market reforms in public services.
• Privatization was used as a process under which the state assets were transferred to the private sector.
• The root of the term privatization goes to this period which got more and more currency around the world once the East European nations and later the developing democratic nations went for it.
• But during the period several connotations and meanings of the term ‘privatization’ have developed. Some of them are described below:

• Privatization in its purest sense and lexically means de-nationalization, i.e., transfer of the state ownership of the assets to the private sector to the tune of 100 per cent. This route of privatization has been avoided by almost all democratic systems.
• The sense in which privatization has been used is the process of disinvestment all over the world. This process includes selling of the shares of the state owned enterprises to the private sector. Disinvestment is de-nationalization of less than 100 per cent ownership transfer from the state to the private sector. If an asset has been sold out by the government to the tune of only 49 per cent the ownership remains with the state though it is considered privatization. If the sale of shares of the state-owned assets has been to the tune of 51 per cent, the ownership is really transferred to the private sector even then it is termed as privatization.
• The third and the last sense in which the term privatization has been used around the world, is very wide. Basically, all the economic policies which directly or indirectly seem to promote the expansion of the private sector or the market (economy) have been termed by experts and the governments as the process of privatization.

Globalization

• The process of Globalization has always been used in economic terms though it has always taken the political and cultural dimensions.
• Globalization is generally termed as ‘an increase in economic integration among nations’.
• The concept was popularised by the Organisation of Economic Cooperation and Development (OECD) in the mid-1980s.
• In its earlier deliberalization, the organisation had defined globalisation in a very narrow and business-like sense—‘any crossborder investment by an OECD company outside its country of origin for its benefit is globalisation’.
• The official meaning of globalisation for the WTO is movement of the economies of the world towards “unrestricted cross border movements of goods and services, capital and the labour force”.
• It simply means that the economies who are signatories to the process of globalization (i.e., signatories to the WTO) for them there will be nothing like foreign or indigenous goods and services, capital and labour. The world becoming a flat and level-playing field emerging in the due process of time
• For many political scientists, globalization is the emergence of a situation when our lives are increasingly shaped by the events that occur at a great distance from us about which the decisions are not taken by our conscious self.
• India became one of the founding members of the WTO and was obliged to promote the process of globalization, though its economic reforms started with no such obligations.
• It is a different thing that India started the process of globalization right after the reforms 1991.
• It should be noted here that the Indian idea of globalization is deeply and frequently inclined towards the concept of welfare state, which keeps coming in the day to day public policy as an emphatic reference.

Generations of Economic Reforms

Though there were no such announcements or proposals while India launched its reforms in 1991, in the coming times, many ‘generations’ of reforms were announced by the governments.A total of three generations of reforms have been announced till date, while experts have gone to suggest the fourth generation, too.

First Generation reforms (1991–2000)

The reforms initiated during 1991 to 2000 were termed as First Generation Reforms. The broad coordinates of the First Generation of reforms may be seen as under:

(i)  Promotion to Private Sector

This included various important and liberalising policy decisions, i.e., ‘de-reservation’ and ‘delicencing’ of the industries, abolition of the MRTP limit, abolition of the compulsion of the phased-production and conversion of loans into shares, simplifying environmental laws for the establishment of industries, etc.

(ii)  Public Sector Reforms

The steps taken to make the public sector undertakings profitable and efficient, their disinvestment (token), their corporatization, etc., were the major parts of it.

(iii) External Sector Reforms

They consisted of policies like, abolishing quantitative restrictions on import, switching to the floating exchange rate, full current account convertibility, reforms in the capital account, permission to foreign investment (direct as well as indirect), promulgation of a liberal Foreign Exchange Management Act (the FEMA replacing the FERA), etc.

(iv) Financial Sector Reforms

Several reform initiatives were taken up in areas such as banking, capital market, insurance, mutual funds, etc.

(v)  Tax Reforms

• This consisted of all the policy initiatives directed towards simplifying, broadbasing, modernising, checking evasion,etc.
• A major re-direction was ensued by this generation of reforms in the economy—the ‘command’ type of the economy moved strongly towards a market-driven economy, private sector (domestic as well as foreign) to have greater participation in the future.

Second Generation reforms (2000–01 onwards)

The government launched the second generation of reforms in 2000-01. Basically, the reforms India launched in the early 1990s were not taking place as desired and a need for another set of reforms was felt by the governments, which were initiated with the title of the Second Generation of economic reforms. These reforms were not only deeper and delicate, but required a higher political will power from the governments. The major components of the reform are as given below:

(i) Factor Market Reforms

• Considered as the ‘backbone’ for the success of the reform process in India, it consists of dismantling of the Administered Price Mechanism (APM).
• There were many products in the economy whose prices were fixed /regulated by the government, viz., petroleum, sugar, fertilizers, drugs, etc.
• Though a major section of the products under the APM were produced by the private sector, they were not sold on market principles which hindered the profitability of the manufacturers as well as the sellers and ultimately the expansion of the concerned industries leading to a demand supply gap.
• Under market reforms these products were to be brought into the market fold.
• But we cannot say that the Factor Market Reforms (FMRs) are complete in India. It is still going on.
• Cutting down subsidies on essential goods is a socio-political question in India.
• Till market-based purchasing power is not delivered to all the consumers, it would not be possible to complete the FMRs.

(ii)  Public Sector Reforms

The second generation of reforms in the public sector especially emphasizes on areas like greater functional autonomy, freer leverage to the capital market, international tie-ups and Greenfield ventures, disinvestment.

(iii)  Reforms in Government and Public Institutions

This involves all those moves which really go to convert the role of the government from the ‘controller’ to the ‘facilitator’ or the administrative reform, as it may be called.

(iv) Legal Sector Reforms

Though reforms in the legal sector were started in the first generation itself, now it was to be deepened and newer areas were to be included, such as, abolishing outdated and contradictory laws, reforms in the Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC), Labour Laws, Company Laws and enacting suitable legal provisions for new areas like Cyber Law, etc.

(v) Reforms in Critical Areas

The second generation reforms also commit to suitable reforms in the infrastructure sector (i.e., power, roads, especially as the telecom sector has been encouraging), agriculture, agricultural extension, education and healthcare, etc. These areas have been called by the government as ‘critical areas’.

Third Generation reforms

• Announcement of the third generation of reforms were made on the margins of the launching of the Tenth Plan (2002–07).
• This generation of reforms commits to the cause of a fully functional Panchayati Raj Institution (PRIs), so that the benefits of economic reforms, in general, can reach to the grassroots.
• Though the constitutional arrangements for a decentralized developmental process were already effected in the early 1990s, it was in the early 2000s that the government gets convinced of the need of ‘inclusive growth and development’.
• Till the masses are not involved in the process of development, the development will lack the ‘inclusion’ factor; it was concluded by the government of the time.

Fourth Generation reforms

• This is not an official ‘generation’ of reform in India. Basically, in early 2002, some experts coined this generation of reforms which entail a fully ‘information technology-enabled’
• They hypothesized a ‘two-way’ connection between the economic reforms and the information technology (IT), with each one reinforcing the other.

India’s reform process which commenced in 1991 has been termed by experts as gradualist in nature with traits of occasional reversals, and without any big ideological U-turns. It reflects the compulsions of India’s highly pluralist and participative democratic policy-making process. Though such an approach helped the country to avoid sociopolitical upheavals/instability, it did not allow the desired economic outcome could have accrue from the reforms. The first generation of economic reforms could not bring the expected results due to lack of some other set of reforms for which India goes after almost over a decade—the second generation of economic reforms. Similarly, the economic benefits (whatever accrued) remained non-inclusive, in absence of an active public policy aimed at inclusion (commencing via the third generation of economic reforms). This created a kind of disillusionment about the prospects of reforms and failed the governments to muster enough public support in favour of reforms.

3. Manila sends more ships to South China Sea

Diplomatic row intensifies over a fleet of Chinese vessels at a disputed reef

The Philippine military ordered the deployment of more navy ships to the South China Sea on Thursday amid a growing diplomatic row over a fleet of Chinese boats parked near a disputed reef.

China claims almost the entirety of the resource-rich sea, and was accused by the United States this week of efforts to “intimidate and provoke others” by parking its vessels near the Whitsun Reef.

‘Incursion of territory’

Manila has ordered Beijing to recall 183 boats at the reef around 320 km west of Palawan Island, describing their presence as an incursion of its sovereign territory.

Around 220 boats were detected by the Philippine coast guard on March 7, but this was made public last weekend.

A military aerial patrol over the reef on Monday found 183 of them were still there.

China says the fishing boats are sheltering from poor weather near the reef, which it claims is part of the contested Spratly Islands. A spokesman for the Armed Forces of the Philippines said the additional navy ships would carry out “sovereignty patrols” in the waterway. He did not say if the ships would go near the reef or what type of vessels would be used.

The diplomatic row has escalated with several countries, including Canada, Australia and Japan, expressing concern over the renewed tensions in the region. Beijing often invokes the so-called nine-dash line to justify its apparent historic rights over most of the South China Sea, parts of which are also claimed by Taiwan, Malaysia, the Philippines and Brunei. China has ignored a 2016 international tribunal decision that declared its assertion as without basis.

South China Sea

• The South China Sea is a busy international waterway, one of the main arteries of global trade worth more than $5 trillion and is growing year on year.
• It is a rich source of hydrocarbons and natural resources.

Islands in the South China Sea

The islands of the South China Sea can be grouped into two island chains.

• The Paracels Islands: These are clustered in the northwest corner of the Sea.
• The Spratly Islands: These are located in the southeast corner.

South China Sea Dispute

The South China Sea is an area of growing conflicts due to territorial claims by different countries. With respect to the Spratly Islands, different geographic features are reportedly occupied by claimants such as Taiwan, Vietnam, the Philippines, China, and Malaysia. The Paracels Islands are claimed by China, Vietnam, and Taiwan.

History of South China Sea Dispute

• In the first half of the 20th century, the Sea remained almost quiet. In fact, at the end of World War II, no claimant occupied a single island in the entire South China Sea.
• China laid claim to the South China Sea in 1947. It demarcated its claims with a U-shaped line made up of eleven dashes on a map, covering most of the area.
• But two “dashes” were removed in the early 1950s to bypass the Gulf of Tonkin as a gesture to communist comrades in North Vietnam.
• The remaining ‘nine-dash line’ stretches hundreds of kilometers south and east of its southerly Hainan Island, covering almost 90% of South China Sea.
• After 1960’s when the huge reserve of oil and natural gas were discovered in the region, the territorial claims started growing in an unprecedented manner.
• The United Nations Convention on the Law of the Sea (UNCLOS), which came into force in 1994, established a legal framework intended to balance the economic and security interests of coastal states with those of seafaring nations.
• While UNCLOS has been signed and ratified by nearly all the coastal countries in the South China Sea, based on their own interpretation of the UNCLOS, claimant countries started to legitimize their claims.
• In 2002, ASEAN and China came together to sign the Declaration on the Code of Conduct of Parties in the South China Sea to keep disputes away. However, it didn’t achieve the desired outcomes.
• In 2009, Malaysia and Vietnam sent a joint submission to the Commission on the Limits of the Continental Shelf (CLCS) for setting out some of their claims. In response to this China submitted a map containing the infamous “nine-dash” line and due to which, there was no headway in the dispute resolution.

PCA-Ruling and implications

• Both the Philippines and China laid their claims the Scarborough Shoal which is a little more than 100 miles from the Philippines and 500 miles from China. The Philippines and China are both dependent upon fishing in the South China Sea, specifically in the Scarborough Shoal, for the economic development and livelihood of their people. A tense but bloodless stand-off between China and the Philippines over Scarborough Shoal in 2012, led to China gaining de facto control over the region.
• But in 2013, the Philippines raised the dispute with China to the PCA(Permanent Court Of Arbitration), saying China’s claims violated Philippines’ sovereignty under the 1982 U.N. Convention on the Law of the Sea(UNCLOS).
• The Permanent Court of Arbitration ruled that Chinese claims over 90 percent of the South China Sea area are illegitimate and under UNCLOS, China is intruding into the Philippines’ sovereign waters as the 9-dash line which includes the Scarborough shoal and crosses into the Philippines EEZ.
• China out rightly rejected the ruling. China prefers bilateral negotiations with the other parties. But many of its neighbors argue that China’s relative size and clout give it an unfair advantage.

ASEAN and South China Sea

One of the fundamental principles of the Association of Southeast Asian Nations (ASEAN) has been to resolve regional disputes by peaceful means. But over the years, the position of ASEAN on the South China Sea disputes has weakened its image internationally and failing to resolve this issue would lead to questions being raised about its credibility as an effective regional organization.

The US and the South China Sea

• The U.S. has no claim in the South China Sea, but has been highly critical of China’s assertiveness and insisted on free navigation of commercial vessels in the South China Sea is vital for regional and international trade.
• It conducted joint military patrols with the Philippines and Japan, Australia, and Indonesia.
• US also increased the financial support for enhancing the military capabilities of ASEAN and East Asian countries as well strengthened bilateral defense collaboration with these countries.

India and the South China Sea

• India remained acutely conscious of its official position of neither being party to the disputes nor taking sides for many years. But with increasing ties with East Asian countries (Act East Policy), India indirectly started raising concerns about Chinese illegitimate claims in the South China Sea. India believes that the disputes in the Southeast Asian littorals are a litmus test for the international maritime law.
• In the aftermath of the Hague Tribunal’s verdict on the South China Sea, India obligated to take a principled stand on the issue of freedom of navigation and commercial access enshrined in the UNCLOS.
• Despite China’s protests, India continues its oil exploration in Vietnam’s exclusive economic zone(EEZ) in the South China Sea from where ONGC Videsh Limited supplies oil to Vietnam.
• India also supports a negotiated settlement of Brunei’s maritime dispute with China and has inked defense cooperation agreement that would provide an institutional foundation for more collaborative work on maritime security and secure India’s energy lanes to Brunei.

4. Editorial-1: Here is why the electoral bonds scheme must go

It violates the basic tenets of India’s democracy by keeping the knowledge of the ‘right to know’ from citizens and voters

The Supreme Court, after a brief hearing on March 24, reserved orders on the question of whether or not to stay the electoral bond scheme, ahead of the upcoming State elections. For the last three years, electoral bonds have been the dominant method of political party funding in India. In their design and operation, they allow for limitless and anonymous corporate donations to political parties. For this reason, they are deeply destructive of democracy, and violate core principles of the Indian Constitution.

A blow against democracy

If democracy means anything, it must mean this: when citizens cast their votes for the people who will represent them in Parliament, they have the right to do so on the basis of full and complete information. And there is no piece of information more important than the knowledge of who funds political parties. Across democratic societies, and through time, it has been proven beyond doubt that money is the most effective way of buying policy, of engaging in regulatory capture, and of skewing the playing field in one’s own favour. This is enabled to a far greater degree when citizens are in the dark about the source of money: it is then impossible to ever know — or assess — whether a government policy is nothing more than a quid pro quo to benefit its funders. The Indian Supreme Court has long held — and rightly so — that the “right to know”, especially in the context of elections, is an integral part of the right to freedom of expression under the Indian Constitution. By keeping this knowledge from citizens and voters, the electoral bonds scheme violates fundamental tenets of our democracy.

It is equally important that if a democracy is to thrive, the role of money in influencing politics ought to be limited. In many advanced countries, for example, elections are funded publicly, and principles of parity ensure that there is not too great a resource gap between the ruling party and the opposition. The purpose of this is to guarantee a somewhat level playing field, so that elections are a battle of ideas, and not vastly unequal contests where one side’s superior resources enable it to overwhelm the other. For this reason, in most countries where elections are not publicly funded, there are caps or limits on financial contributions to political parties.

The electoral bonds scheme, however, removes all pre-existing limits on political donations, and effectively allows well-resourced corporations to buy politicians by paying immense sums of money. This defeats the entire purpose of democracy, which as B.R. Ambedkar memorably pointed out, was not just to guarantee one person, one vote, but one vote one value.

However, not only do electoral bonds violate basic democratic principles by allowing limitless and anonymous donations to political parties, they do so asymmetrically. Since the donations are routed through the State Bank of India, it is possible for the government to find out who is donating to which party, but not for the political opposition to know. This, in turn, means that every donor is aware that the central government can trace their donations back to them. Given India’s long-standing misuse of investigative agencies by whichever government occupies power at the Centre, this becomes a very effective way to squeeze donations to rival political parties, while filling the coffers of the incumbent ruling party. Statistics bear this out: while we do not know who has donated to whom, we do know that a vast majority of the immensely vast sums donated through multiple electoral cycles over the last three years, have gone to the ruling party, i.e. the Bharatiya Janata Party.

Gaps in government’s defence

The government has attempted to justify the electoral bonds scheme by arguing that its purpose is to prevent the flow of black money into elections. The journalist Nitin Sethi has already debunked this rationale in a detailed 10-part investigative report, which has also highlighted reservations within the government as well as by the Election Commission of India to the electoral bonds scheme. That apart, this justification falls apart under the most basic scrutiny: it is entirely unclear what preventing black money has to do with donor anonymity, making donations limitless, and leaving citizens in the dark. Indeed, as the electoral bonds scheme allows even foreign donations to political parties (which can often be made through shell companies) the prospects of institutional corruption (including by foreign sources) increases with the electoral bonds scheme, instead of decreasing.

It is important to be clear that the objections to the electoral bonds scheme, highlighted above, are not objections rooted in political morality, or in public policy. They are constitutional objections. The right to know has long been enshrined as a part of the right to freedom of expression; furthermore, uncapping political donations and introducing a structural bias into the form of the donations violate both the guarantee of equality before law, as well as being manifestly arbitrary.

The judiciary needs to act

This brings us to the all-important role of the courts. One of the most critical functions of an independent judiciary in a functioning democracy is to referee the fundamentals of the democratic process. Governments derive their legitimacy from elections, and it is elections that grant governments the mandate to pursue their policy goals, without undue interference from courts. However, for just that reason, it is of vital importance that the process that leads up to the formation of the government be policed with particular vigilance, as any taint at that stage will taint all that follows. In other words, the electoral legitimacy of the government is questionable if the electoral process has become questionable. And since the government itself cannot — in good faith — regulate the process that it itself is subject to every five years, the courts remain the only independent body that can adequately umpire and enforce the ground rules of democracy.

It is for this reason that courts must be particularly sensitive to and cognisant of laws and rules that seek to skew the democratic process and the level playing field, and that seek to entrench one-party rule over multi-party democracy. There is little doubt that in intent and in effect, the electoral bonds scheme is guilty of both. Thus, it deserves to be struck down by the courts as unconstitutional.

`In this regard, the conduct of the Supreme Court so far has been disappointing. The petition challenging the constitutional validity of the electoral bonds scheme was filed in 2018. The case, which is absolutely vital to the future health of Indian democracy, has been left unheard for three years. The Supreme Court’s inaction in this case is not neutral: it directly benefits the ruling party which as we have seen, has received a vast bulk of electoral bond funding through the multiple State and one general election since 2018, and creates a continuing distortion of democracy. It is a matter of some optimism that a start was finally made when the Court heard the application for stay before this round of elections. One can only hope that the Court will stay the scheme so that it does not further distort the coming round of elections, and then proceed to hear and decide the full case, in short order.

5. Editorial-2: Remove the wedges in India-Bangladesh ties

Small but important steps can put an end to the long-standing issues in a relationship that is gradually coming of age

The friendship between India and Bangladesh is historic, evolving over the last 50 years. India’s political, diplomatic, military and humanitarian support during Bangladesh’s Liberation War played an important role towards Bangladesh’s independence. Nearly 3,900 Indian soldiers gave up their lives and an estimated 10 million Bangladeshi refugees took shelter in India.

Now it is about cooperation

Post-Independence, the India-Bangladesh relationship has oscillated as Bangladesh passed through different regimes. The relationship remained cordial until the assassination of Bangladesh’s founding President Sheikh Mujibur Rahman in August 15, 1975, followed by a period of military rule and the rise of General Ziaur Rahman who became President and also assassinated in 1981. It thawed again between 1982-1991 when a military-led government by General H.M. Ershad ruled the country. Since Bangladesh’s return to parliamentary democracy in 1991, relations have gone through highs and lows. However, in the last decade, India-Bangladesh relations have warmed up, entering a new era of cooperation, and moving beyond historical and cultural ties to become more assimilated in the areas of trade, connectivity, energy, and defence.

Bangladesh and India have achieved the rare feat of solving their border issues peacefully by ratifying the historic Land Boundary Agreement in 2015, where enclaves were swapped allowing inhabitants to choose their country of residence and become citizens of either India or Bangladesh. The Bangladesh government led by Prime Minister Sheikh Hasina has uprooted anti-India insurgency elements from its borders, making the India-Bangladesh border one of the region’s most peaceful, and allowing India to make a massive redeployment of resources to its more contentious borders elsewhere.

Bangladesh today is India’s biggest trading partner in South Asia with exports to Bangladesh in FY 2018-19 at $9.21 billion and imports at $1.04 billion. India has offered duty free access to multiple Bangladeshi products. Trade could be more balanced if non-tariff barriers from the Indian side could be removed. On the development front, cooperation has deepened, with India extending three lines of credit to Bangladesh in recent years amounting to $8 billion for the construction of roads, railways, bridges, and ports. However, in eight years until 2019, only 51% of the first $800 million line of credit has been utilised whilst barely any amount from the next two lines of credit worth $6.5 billion has been mobilised. This has been mostly due to red-tapism from India’s end, and slow project implementation on Bangladesh’s end.

Bangladeshis make up a large portion of tourists in India, outnumbering all tourists arriving from western Europe in 2017, with one in every five tourists being a Bangladeshi. Bangladesh accounts for more than 35% of India’s international medical patients and contributes more than 50% of India’s revenue from medical tourism.

The connectivity boost

Connectivity between the two countries has greatly improved. A direct bus service between Kolkata and Agartala runs a route distance of 500 km, as compared to the 1,650 km if it ran through the Chicken’s Neck to remain within India. There are three passenger and freight railway services running between the two countries, with two more routes on their way to be restored. Recently, a 1.9 kilometre long bridge, the Maitri Setu, was inaugurated by Prime Minister Narendra Modi, connecting Sabroom in India with Ramgarh in Bangladesh.

Bangladesh allows the shipment of goods from its Mongla and Chattogram (Chittagong) seaports carried by road, rail, and water ways to Agartala (Tripura) via Akhura; Dawki (Meghalaya) via Tamabil; Sutarkandi (Assam) via Sheola, and Srimantpur (Tripura) via Bibirbazar. This allows landlocked Assam, Meghalaya and Tripura to access open water routes through the Chattogram and Mongla ports (https://bit.ly/3vXySpB).

Bones of contention

Despite the remarkable progress, the unresolved Teesta water sharing issue looms large. Border killings are yet to stop. The year 2020 saw the highest number of border shootings by the Border Security Force. The shots are fired at civilians, usually cattle traders, who are usually unarmed, trying to illegally cross the border. India not only has failed to stop the border killings but at times has even justified them. The statement by India’s External Affairs Minister, S. Jaishankar, during his recent visit to Dhaka, that “our shared objective should be a no crime-no death border…”, raises questions as to why killings, and not due legal proceedings, are being followed in tackling border crimes.

The Modi government’s proposal to implement the National Register of Citizens across the whole of India reflects poorly on India-Bangladesh relations. It is not comprehensible why people of all religions and ethnicities barring Muslims will be excluded from the Bill. It remains to be seen how India addresses the deportation of illegal Muslim immigrants, some of whom claim to have come from Bangladesh.

Sri Lanka, Nepal and the Maldives, once considered traditional Indian allies, are increasingly tilting towards China due to the Asian giant’s massive trade, infrastructural and defence investments in these countries. In spite of its ‘Neighbourhood First Policy’, India has been losing its influence in the region to China. Bhutan also does not abide by Indian influence as evinced by its withdrawal from the BBIN (Bhutan-Bangladesh-India-Nepal) motor vehicles agreement. China, in lieu of its cheque-book diplomacy, is well-entrenched in South Asia, including Bangladesh, with which it enjoys significant economic and defence relations.

Keeping the momentum going

India-Bangladesh relations have been gaining positive momentum over the last decade. As Bangladesh celebrates its 50 years of independence (March 26, 1971), India continues to be one of its most important neighbours and strategic partners. As the larger country, the onus is on India to be generous enough to let the water flow and ensure that people are not killed on the border for cattle even if it is illegal when there are appropriate means for justice. These small but important steps can remove long-standing snags in a relationship which otherwise is gradually coming of age in 50 years. To make the recent gains irreversible, both countries need to continue working on the three Cs — cooperation, collaboration, and consolidation.