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Over the course of November and December, a Constitution Bench of the Supreme Court of India heard a crucial case about the method by which the Election Commission of India (ECI) is constituted, and Election Commissioners appointed.
At the time of writing, the Court has reserved its judgment, which is expected early in the new year. The issues before the Court are straightforward, but with far-reaching ramifications for Indian democracy: is complete executive control over appointments to the ECI constitutional? And if not, what manner of appointment is sufficient to preserve the independence of the ECI, and the fairness of elections?
According to the classical understanding of modern democracy, there are three “wings” of state: the legislature, the executive, and the judiciary.
The task of the Constitution is to allocate powers between these three wings, and to ensure that there is an adequate degree of checks and balances between them.
Traditionally, bodies that are involved with administrative and implementational issues — elections being among them — are believed to fall within the executive domain.
However, in contemporary times, that understanding is no longer dominant. It is now commonly accepted that healthy constitutional democracies need what are known as “fourth branch institutions” (or, alternatively, “integrity institutions”).
The reason why a “fourth branch” — in addition to the legislature, the executive, and the judiciary — needs to exist is the following: many of the basic rights and guarantees that we enjoy cannot be effective without an infrastructure of implementation.
Let us take, for example, the right to information, a staple feature of most modern constitutional democracies.
Without an infrastructure of implementation, the right to information will remain only a paper guarantee. We need, for example, an information commission, adequately staffed and funded, which will oversee the on-ground enforcement of the right to information, compel recalcitrant public institutions to release public information, adjudicate disputes, and so on. These tasks involve elements of the judicial function as well as the administrative function, and, therefore, cannot only be performed by the judiciary, but need bodies — such as commissions — to perform them on a daily basis.
A role for India in a world wide web (Page no. 6)
(GS Paper 2,International Relations)
A recent statement by External Affairs Minister S. Jaishankar that India can play a “stabilising” and “bridging” role, at a time when the world no longer offers an “optimistic picture”, is intriguing.
He stated that India can contribute towards the “de-risking of the global economy” and in political terms, “in some way, help depolarise the world”.
He said, “I think those are really expectations that a lot of other countries, especially countries of the global south have of us. Obviously, we will try and do what we can, and we remain in touch with all the bottom countries of the world.”
He added, “Countries wanted to talk to us, because there is a belief that we are in touch with key players [and] we can influence them, we can shape the thinking, we can contribute, we are prepared, sometimes to say things which many others cannot see, or have reached out to countries and leaders in a way may not be possible for everybody to do so.”
Mr. Jaishankar’s is an ambitious formulation expressed, wisely, in cautious terms. In 2012, when I wrote my book, Pax Indica: India and the World in the 21st Century, many immediately misconstrued the title phrase to mean world domination, as in the familiar “Pax Romana” or “Pax Britannica”.
What I meant, however, was the critical role I believed India has to play in what has become a cooperative networked system in our multi-polar world.
The idea of “Pax Indica”, to me, is not about India as a future “world leader” or even as “the next superpower”, a status assorted commentators claimed that it was heading irresistibly towards.
Instead “Pax Indica”, in my conception, was about India’s role in shaping the emerging global “network” which would define international relations and world politics in the 21st century.
In any case, the very idea of “world leadership” is a curiously archaic notion; the very phrase is redolent of Kipling ballads and James Bondian adventures.
Opinion
The profound ramifications of one amendment (Page no. 7)
(GS Paper 2,Polity and Governance)
The deadline for comments on the Digital Personal Data Protection (PDP) Bill, 2022, has been extended till January 2, 2023. The Bill of 2022 incorporates hefty penalties for non-compliance, but which are capped without any link to the turnover of the entity in question.
A major concern is the provision in the Bill which seeks to deny providing any personal information on administration officials under Section 8(1)(j) of the Right to Information Act, citing the protection of “individual privacy”. This poses a serious problem with the right of privacy-vis-à-vis the right to freedom of speech.
This fourth iteration of the law on data protection misses out on the recommendation of the Justice Srikrishna Committee, which was set up in 2017, after the Supreme Court’s Puttaswamy judgment.
It ignores the concerns raised by stakeholders about its previous versions. The Joint Parliamentary Committee had suggested more than 80 amendments to the draft PDP Bill of 2019, which was withdrawn in August 2022, citing “extensive changes”.
Under the draft law, all the major actors – data principal, data fiduciaries, and the Data Protection Authority of India (DPAI) – will exercise excessive control.
The DPAI will have great independent authority in a regulative area. The selection committee consisting of the Chief Justice of India or her nominee, the Cabinet Secretary, and one person with expertise and repute in the data technology field will have tremendous power.
The unfettered power of the executive over the DPAI only serves to defeat the autonomy of the institution. It is imperative that there be a certain degree of separation between the executive and the regulatory body.
Since the DPAI will be entrusted with monitoring and enforcing legal affairs and policy setting, research and awareness, inquiries, grievance handling, and adjudication, this overseeing power is expected to guard fundamental rights.
If there is such excessive power, due to the direct intervention and control of the executive ensuring accountability and transparency becomes a big challenge.
This is no casual amendment to the Bill; it has profound ramifications. It will affect the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution and play havoc with the tenuous balance between freedom of speech and the exceptional restrictions delineated in Article 19(2).
In fact, the first amendment to this effect in the Constitution in 1951 had almost diluted the freedom of speech. Unfortunately, the so-called data protection Bill in the name of protecting privacy is destined to destroy the right to information.
Explainer
A new global biodiversity framework (Page no. 8)
(GS Paper 3,Environment)
The Convention on Biological Diversity (CBD), the United Nations agreement to conserve and sustainably use earth’s biodiversity, got a boost at a conference held in Montreal recently, when 188 of 196 member governments agreed on a new framework to halt the sharp and steady loss of biological species.
These governments, supported by the U.S. and the Vatican, who are not party to the Convention, adopted the Kunming-Montreal Global Biodiversity Framework (GBF) that sets out four goals for 2050, and 23 targets for 2030, to save existing biodiversity and ensure that 30% of degraded terrestrial, inland water, coastal and marine ecosystems come under effective restoration.
Often called the web of life, biodiversity signifies the variety of species on earth, which are all connected and sustain the balance of ecosystems, enabling humans to coexist.
They interact with the environment to perform a host of functions. The CBD states that only about 1.75 million species have so far been identified, including numerous insects, while there may be some 13 million species.
Some familiar ecosystem services rendered by diverse living forms, of which plants and animals are the most visible, include providing humans with food, fuel, fibre, shelter, building materials, air and water purification, stabilisation of climate, pollination of plants including those used in agriculture, and moderating the effects of flood, drought, extreme temperatures and wind.
A disruption of these produces severe impacts such as failed agriculture, aberrant climate patterns and cascading losses of species that accelerate the degradation of earth.
According to the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), a quarter of the plants and animals it assessed for the 2019 Global Biodiversity Outlook are threatened, which translates to about one million species facing extinction.
Similarly, a review on the economics of biodiversity by Cambridge professor Partha Dasgupta commissioned by the U. K. government reported that the current model of economic growth would require 1.6 earths to maintain current lifestyles.
The agreement to implement the GBF was pushed through on December 18 by the Chinese conference presidency and host Canada in the face of objections from some African countries such as the Democratic Republic of Congo, Cameroon and Uganda.
Text & Context
How the great gamble on the price cap on Russian oil might just fumble (Page no. 9)
(GS Paper 2,International Agreement and Policies)
The Group of Seven (G7) countries, the European Union and Australia have imposed a price cap on Russian sea-borne oil to make it harder for Russia to fund its war against Ukraine.
Under the plan, Western companies that dominate the global oil shipping and insurance business will be banned from offering their services to ship or insure Russian oil that is purchased at more than $60 per barrel. The price cap is an attempt by the West to cut Russia’s oil revenues without affecting oil supplies.
It should be noted that since the beginning of the Russia-Ukraine war, the West has been trying to limit Russia’s energy revenues.
At the same time, since Russia is a major oil producer that contributes more than 10% of overall global supplies, the West has been wary of imposing sanctions that could cause oil supply from Russia to fall steeply and send oil prices shooting up.
In fact, it is estimated that crude oil prices could rise to as much as $200 per barrel if oil supply from Russia were to be disrupted by Western sanctions.
Noted economists such as Janet Yellen, currently U.S. Treasury Secretary, and Mario Draghi, till recently Prime Minister of Italy, have been at the forefront of pushing the idea of a price cap, which they believe will limit Kremlin’s oil revenues without affecting global oil supplies.
Even though the West has cut down its purchase of Russian oil this year, Russia has been able to sell its oil to India and China to keep its energy revenues buoyant.
The price cap could be seen as an attempt by the West to make buyers of Russian oil pay less for the oil they purchase, thus preventing the Kremlin from profiting too much from its oil sales.
Russia has already had to sell its oil at discounted rates, which the West sees as a partial success in its efforts to choke Kremlin’s revenues by refusing to purchase Russian oil.
It is estimated that Russia, with a cost of production of somewhere between $20 and $45 per barrel, will earn a small profit on its oil sales.
At the moment, Russian oil is trading at a price that is below the cap of $60 per barrel imposed by the West. However, the average price of Russian Urals over the last 10 years has been about $75 per barrel.
News
Rule 267, a bone of contention in Rajya Sabha (Page no. 11)
(GS Paper 2,Polity and Governance)
Rule 267 of the Rajya Sabha rulebook, which allows for suspension of day’s business to debate the issue suggested by a Member, has become a bone of contention in the Upper House.
Mr. O’Brien quoting Parliamentary records said that there were 11 instances between 1990 up till 2016 that this rule was invoked for various discussions.
The last instance was in 2016 when then Chairman Hamid Ansari allowed for a debate on the “demonetisation of currency”. In this session, the Members have moved notices under the rule demanding debate on various issues, including the India-China stand-off.
The TMC leader argued that Rajya Sabha rules were governed by precedence. On the question of precedence, Mr. Dhankhar had earlier said that his predecessor Venkaiah Naidu had not accepted a single notice under the rule during his six-year term.
At the same time, he pointed out that the previous chairpersons have accepted the notices on this rule. Vice-President Shankar Dayal Sharma between 1990 to 1992 accepted four notices, Bharon Singh Shekhawat accepted three and Hamid Ansari four, he said. “I agree with you, it can’t be accepted every week.
Mr. Dhankhar commented that moving motions under “Rule 267” has become a known mechanism of causing disruption.
As per the statistics, the rule has been invoked 11 times since 1990 for various issues, including “Gulf War” in 1991 when Sharma was presiding, to debate “corruption” when Shekhawat was Chairman and under Mr. Hamid Ansari it was used four times to debate the “role of CBI in coalgate scam”, “attack on the secular fabric of the country”, “agrarian crisis” and “demonetisation of currency.
The Rajya Sabha rule book defines “Rule 267” under “suspension of rules” as an instance where “any Member, may, with the consent of the Chairman, move that any rule may be suspended in its application to a motion related to the business listed before the council of that day and if the motion is carried, the rule in question shall be suspended for the time-being.”
Three more sites added to tentative list of UNESCOS (Page no. 12)
(GS Paper 1,Art and Culture)
Gujarat’s Vadnagar town, the iconic Sun Temple at Modhera, and the rock cut sculptures of Unakoti in Tripura have been added to the tentative list of UNCESO World Heritage Sites.
The UNESCO tentative list is an “inventory of those properties which each State Party intends to consider for nomination”.
With this, India now has 52 sites on UNESCO Tentative List. The list indicates rich cultural and natural wealth of India and shows huge diversity of our heritage. With PM Narendra Modi’s dynamic vision and leadership, India is committed to add more sites on the World Heritage List.
The ASI shared his tweet and said that the step will provide a big boost to India’s cultural heritage.
The Sun Temple, Modhera dedicated to Surya Dev, is the earliest of such temples which set trends in architectural and decorative details, representing the Solanki style at its best.
Vadnagar is a municipality under Mehsana district of Gujarat. A multi-layered historic town, the history of Vadnagar stretches back to nearly 8th century BCE.
The town still retains a large number of historic buildings that are primarily religious and residential in nature.
Unakoti, located in the northeastern region of Tripura, is known as an ancient holy place associated with Shaiva worship. The site is a massive gallery set in a forested area displaying a number of towering low relief images in a unique style, making it a masterpiece of human creative genius.
Navy takes delivery of submarine Vagir, to be commissioned in Jan (Page no. 12)
(GS Paper 3,Defence)
The fifth Scorpène-class conventional submarine, Vagir, was delivered to the Navy by Mazagon Dock Shipbuilders Limited (MDL) Mumbai on December 20. It is scheduled to be commissioned into service next month.
It is a matter of great pride that Vagir has completed all major trials including the weapon and sensor trials in the shortest time in comparison to the earlier submarines,” the Navy said in a statement. A notable achievement is that this is the third submarine delivered to the Navy in a span of 24 months, it added.
Vagir was launched into water on November 12, 2020 and commenced sea trials on February 1, 2022.
The sixth and last of the Scorpène-class submarines, Vagsheer, was launched into water in April 2022 and is expected to be delivered to the Navy by end 2023.
Six Scorpene submarines are being built under Project-75 by MDL under technology transfer from Naval Group of France under a $3.75 billion deal signed in October 2005. The project is about four years behind schedule.
The first submarine INS Kalvari was commissioned in December 2017, second submarine INS Khanderi in September 2019, third one INS Karanj in March 2021 and the fourth one INS Vela joined service in November 2021.
Parallelly, the tender to build six more advanced conventional submarines under Project-75I is in the Request For Proposal (RFP) stage but has suffered delays.
With delays in submarine induction, the SSKs - 209s (German HDWs) and EKMs (Russian Kilo’s), are being put through the Medium Refit Life Certification (MRLC) process which will give them additional life of 10 to 15 years.
The Navy currently has 15 conventional and one nuclear submarine in service. It includes seven Russian Kilo class submarines, four German HDW submarines, four Scorpene class submarines and the indigenous nuclear ballistic missile submarine INS Arihant.