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- The current situation in Assam seems like a nightmare, a warning about the internal contradictions of democracy
- It is a warning that the 19th century ideas of democracy as electoral-ism and the notion of the nation-state as a fetishism of borders may be inappropriate as imaginations for the 21st century
- It is a caution that governance and politics are full of ironies and paradoxes and that the best of intentions might lead to the worst consequences
- Inherent in it is the banalisation of evil that can take place when suffering on a large scale gets reduced to a cost-benefit scenario
History of citizen registers
- The politics of citizens’ registers underlines the problem of migratory politics, refracted through the layered memories of many historical events
- It began in the colonial era when the British attempted to import labour for the plantations
- Major displacements like Partition and the Bangladesh war added to a huge “illegal” population
What’s the issue with current NRC updation?
- A register which began as a routine, even clinical exercise now acquires a Machiavellian shadow
- In this tussle between the nation-state and an open democracy, the enclosure and the panopticon as mediums of control are at odds with the idea of the commons and the hospitality of the community
- Technocratic solutions cannot hide the absence of human and historical understanding
- The handling and management of large populations create a problem of ethics. Assam raises the question of both triage and exterminism
- The dispensability and disposability of large populations confronts India on a large scale
Handling such situations
- One cannot handle such situations merely through law
- One needs generosity, hospitality and compassion
- One needs to understand that once our civics accepts the detention centre and the internment camp as routine, we are creating gulags of the mind, where one can begin with an ordinary act of classification and erase a people
- Indian democracy has to face the genocidal prospect inherent both in its technocratic sense of governance and in the anxieties that electoralism creates
Security vs Nation state paradigm
- The shift from citizenship to a preoccupation with security unfolds a different paradigm of thought
- Nation-state and citizenship as encompassing entities offer different ideas of order and control
- Security is a panopticon-ising notion, while citizenship is a caring, even protective, one
- Security operates on the grids of surveillance, scrutiny and separation
- Citizenship is a more hospitable notion of initiating the other into a system
- We need to go back and look at our Constitution and reread notions of the border, the very idea of citizenship
- We need to go beyond hard definitions and look at the penumbra of these concepts
- We need to think of a nation-state with permeable borders and a fluid sense of citizenship which makes life more hopeful for the refugee
- The Motor Vehicles (Amendment) Bill, passed by the Lok Sabha last year, seeks to address lacunae in transport sector, but it has now run into opposition in the Rajya Sabha because of its perceived shift of power from the States to the Centre
- As the subject is in the Concurrent List, Parliament can make a law defining powers available to the States
- Some State governments are concerned about the new provisions
Concerns of the states
- Sections 66A and 88A will empower the Centre to form a National Transportation Policy through a process of consultation, and not concurrence
- The changes will also enable Centrally-drafted schemes to be issued for national, multi-modal and inter-State movement of goods and passengers, for rural mobility and even last-mile connectivity
- Since all this represents a new paradigm that would shake up the sector, several States have opposed the provisions as being anti-federal
Changing dynamics of the transport sector
- The passenger transport sector operating within cities and providing inter-city services has grown amorphously
- Vested interests of some people have resulted in exploiting the lack of transparency and regulatory bottlenecks
- State-run services have not kept pace with the times
- Major investments made in the urban metro rail systems are yielding poor results in the absence of last-mile connectivity services
What needs to be done?
- Creating an equitable regulatory framework for the orderly growth of services is critical
- This could be achieved through changes to the MV Act that set benchmarks for States
- Enabling well-run bus services to operate across States with suitable permit charges is an imperative to meet the needs of a growing economy
- The effort to curb institutionalised corruption at Regional Transport Offices by making it possible for dealers to directly register new vehicles, and enabling online applications for driving licences is welcome
- It is the certainty of enforcement, zero tolerance and escalating penalties that will really work
- India’s law governing motor vehicles and transport is archaic, lacking the provisions necessary to manage fast motorisation
- The lacunae in the Motor Vehicles Act, 1988, require to be addressed to improve road safety, ensure orderly use of vehicles and expand public transport
- Adherence to the rules of an international trade organisation was expected to serve as an important domestic incentive (and imperative) for governments by allowing them to resist protectionist demands and provide for greater legal certainty
- The U.S. drove the agenda to establish the World Trade Organisation (WTO) purely to pursue its own commercial interests
- The U.S. has been long proven isolationist and has never truly embraced the idea of a multilateral system in which its leadership could be contested
- A closer look at the Doha round of trade negotiations shows that the U.S. may well have consciously (or not) destroyed the negotiation process in formulating excessive demands that no country was prepared to meet
- The current crisis with the WTO dispute settlement system does not come as a surprise. In trade wars, the objective is not to settle a dispute; it is to win the battle
What’s the issue?
- The U.S. has systematically blocked the appointment of new Appellate Body members (“judges”) and de facto impeded the work of the WTO appeal mechanism
- With only four working members out of seven normally serving office in July 2018, the institution is under great stress
- If no appointment is made, it will simply be destroyed by December 2019, with only one remaining member to tackle a massive number of disputes that are also increasingly hypertechnical
- Other WTO members are expressing concerns over the politicisation of the Appellate Body appointment and reappointment process; and the quasi-attribution of permanent Appellate Body seats to the U.S. and the European Union (EU)
- There is concern that China may be on its way to having a permanent seat
Resolving the issue
- Since its accession to the Organisation, in 2001, and despite an extremely demanding protocol of accession designed by the U.S. and the EU to literally constrain its emerging power and limit the impact of its commercial domination on their own economies, China has largely benefited from the rules-based WTO system
- China has accumulated a vast experience close to that of the U.S. or Europe
- China now claims to hold the legitimacy to take the lead in WTO matters
- The recent EU-China proposal to promote the reform of the WTO is said to combat “unilateralism and protectionism”
- The world has changed and multilateral institutions now have to embed these changes
- Today’s WTO crisis might well be the last ditch battle to retain control over a Western-centric organisation
- The time has come for the emerging economies and the developing world to have a greater say in how to shape multilateralism and its institutions
- In order to limit scope for political intervention, the Search-cum-Selection Committee has decided that the appointment process to be handled by UPSC through the ongoing process.
- The panel headed by the Cabinet Secretary reposed more faith in the UPSC to make the appointments than take it upon the committee itself.
No affirmation yet over selection process
- No prior consultancy was done with any of the 10 ministries on how to go about the selection process.
- Therefore, the committee had no clue on how to select the bureaucrats.
- Also missing is the assessment criteria for screening individual applications, as these are likely to be varied as per demands of various ministries.
- The panel was therefore in two minds: either to hand over the shortlisting of candidates to the UPSC too or to let each ministry prune the applications for the UPSC’s selection procedure.
Screening through Experts
- In case if PM decides to hand over the shortlisting to the concerned ministry, one option would be to hand over the applications to a team of sectoral experts for screening.
- Those shortlisted would then be scrutinized by a panel of government representatives.
- Assessing a candidate’s domain knowledge and experience before assessing his motivation is a crucial task which can be effectively done by sectoral experts.
Lateral Entry to bypasses Reservations for Field Expertise
The ‘lateral entry’ route will also bypass the UPSC system under which 15 per cent seats are reserved for Scheduled Castes, 7.5 per cent for Scheduled Tribes and 27 per cent for OBCs in the IAS.
NCBC is statutory body established under NCBC Act, 1993 in the aftermath of Mandal Case (1992) judgement. It was established on directives of Supreme Court as it had ordered to set up permanent statutory body to look into complaints of under-inclusion, over-inclusion or non-inclusion of any class of citizens in list of OBCs.
- People belonging to the Other Backward Classes will soon be able to approach a new National Commission for Backward Classes (NCBC) with Constitutional status to get their grievances redressed.
- The panel will come into being following the passage of the 123rd Constitutional Amendment Bill by the Lok Sabha
- It will be able to enforce the safeguards provided to the Socially and Educationally Backward Classes (SEBCs) and solve their grievances.
- The present NCBC can only recommend inclusion and exclusion of castes from the OBC list and the level of income that cuts off the “creamy layer” among these castes from the benefits of reservation.
- Till now, it was the National Commission of Scheduled Castes that addressed the grievances of the OBCs. Article 338 of the Constitution, which provides for a “Special Officer for the Scheduled Castes and Scheduled Tribes” to investigate all matters relating to the safeguards available to them under the Constitution, says categorically that SC/STs “shall be interpreted as including references to Other Backward Classes”, once a Commission decides who they are.
- So, with OBC reservations becoming a reality in the 1990s, the mandate of the SC Commission got extended. These functions will now get transferred to the NCBC.
Mandate of NCBC:
- In the case of grievances related to non-implementation of reservations, economic grievances, violence, etc., people from the SEBC category will be able to move the Commission.
- Clause-3 (5) of the Bill gives the proposed Commission the power to inquire into complaints of deprivation of rights and safeguards.
- Clause 3 (8) gives it the powers of a civil court trying a suit and allows it to summon anyone, require documents to be produced, and receive evidence on affidavit.
Last week, the State government, currently under Governor’s Rule, moved a plea in the Supreme Court to defer the hearing on a clutch of petitions challenging the validity of Article 35A of the Constitution, citing the upcoming panchayat and urban local body elections.
Article 35 A
Article 35A lets the J&K Legislature decide the “permanent residents” of the State, prohibits a non-J&K resident from buying property in the State and ensures job reservation for its residents.
Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.
How did it come about?
- Article 35A was incorporated into the Constitution in 1954 by the order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet.
- The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.
- The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir. Therefore, Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.
- The parliamentary route of law making was bypassed when the President incorporated Article 35A into the Constitution.
- Article 368 (i) of the Constitution empowers only the Parliament to amend the Constitution.
- A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.
- A writ petition filed challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution.
- Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.
- The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.
- Another petition has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.
- The National Conference argues that if the law goes, with it all other presidential orders passed since the 1950s will also become redundant and reopen the debate around the issue of accession.
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