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A majority of four judges on a Constitution Bench of the Supreme Court on Monday found no flaw in the government’s process to demonetise ₹500 and ₹1000 banknotes through a gazette notification issued on November 8, 2016.
The sole woman judge, Justice B.V. Nagarathna, on the five-member Bench however disagreed with the majority, saying the government’s notification issued under Section 26(2) of the Reserve Bank of India (RBI) Act was unlawful.
But Justice B.R. Gavai, delivering the judgment for the majority which included Justices S. Abdul Nazeer, AS Bopanna, V. Ramasubramanian, said the statutory procedure under Section 26(2) was not violated merely because the Centre had taken the initiative to “advise” the Central Board to consider recommending demonetisation. The government was empowered under the provision to demonetise “all series” of banknotes.
Differing, Justice Nagarathna said the government could have issued a notification under Section 26(2) only if the Central Board of the RBI had initiated the proposal to demonetise a specified series of banknotes by way of a recommendation. Here, in 2016, the government had initiated the demonetisation, not the Central Board.
In cases in which the government initiates demonetisation, Justice Nagarathna said, it should take the opinion of the Central Board.
The opinion of the Board should be “independent and frank”. If the Board’s opinion was in the negative, the Centre could still go forward with the demonetisation exercise, but only by promulgating an ordinance or by enacting a parliamentary legislation.
Justice Nagarathna further concluded there was no “meaningful application of mind” by the Central Board to the government’s initiative for withdrawing ₹500 and ₹1000 notes, which formed 86% of the currency in circulation at the time causing severe financial crunch and socio-economic despair. She said the Central Board had “hardly 24 hours to consider the proposal” of the Centre to demonetise the notes.
Justice Nagarathna said the objectives of demonetisation were “noble and well-intentioned”, but the process undertaken was bad in law.
States
Over 3 years after completion, Wall of Peace mural thrown open in Kerala (Page no. 5)
(GS Paper 1,Art and Culture)
The Wall of Peace, a great work of modern mural art on the 700-feet long compound wall of Government Vocational Higher Secondary School at Cherpulassery, was inaugurated.
Minister for Local Administration M.B. Rajesh dedicated the wall to the nation more than three and a half years after it was completed by Banaras Hindu University assistant professor Suresh K. Nair and his students.
The mural, in dimmed golden shade done with cement and sand on the 10-ft-high wall, has already won many an accolade, including the Eurasia World Record for the largest public art project. No one can pass this century-old school wall without noticing Mr. Suresh’s work of art.
Mr. Suresh converted the idea of Wall of Peace that had dawned upon him over a decade ago when the school authorities approached him for his creative contribution.
The word ‘peace’ has been embossed on the wall in 250 world languages. Art lovers from countries like Austria, Israel, Hungary and the U.S. who visited Cherpulassery and neighbouring villages stood in awe in front of the wall as they read ‘peace’ in their respective languages.
Apart from the word ‘peace’, Mr. Suresh used the struggle for freedom as the key motif of his biggest mural done under the banner of the school development committee named School Project Aiming Centre of Excellence (SPACE).
Mr. Suresh portrayed the moon at the start and the sun at the end symbolically showing humanity’s transition from darkness to light, and from bondage to freedom and peace.
The wall has also been a tribute to Cherpulassery’s local heroes of freedom struggle. “As a student, I was influenced by the book Khilafat Smaranakal penned by freedom fighter MoozhikkunnathuBrahmadathanNamboodiripad.
It describes the cruel treatment meted out to him by the British, who tied him to a horse and dragged him to prison. I could give life to those disturbing images on the wall along with several others.
Cherpulassery’s traditional cultural activity like Kaalavela, and Karalmanna’s famous Pandibhojanam too have found a place on the wall. Mahatma Gandhi’s visit to the region is also on the Wall of Peace.
Editorial
The case against state control of Hindu temples (Page no. 6)
(GS Paper 2,Constitution )
State management of temples is often justified as a way of ensuring access to temples for worshippers and archakas (priests). Regulating secular activities associated with religious practice can be traced to Article 25(2)(a) of the Constitution. Temple control legislation is purportedly justified by this Article.
However, the framers of the Constitution, being aware of the temple entry movement, advisedly provided a separate power under Article 25(2)(b) which empowers the state to enact laws “providing for social welfare and reform or the throwing open of Hindu religious institutions” to “all classes and sections of Hindus”.
Hence, the issue of regulating secular aspects of religious practice is distinct from providing access to worship. This is why there are separate laws for temple control and temple entry. They co-exist; one does not depend on the other.
Proponents of state management of temples also argue that courts have accorded approval to this practice. Any discussion on this topic will necessarily begin with the Shirur Mutt judgment (1954) of the Supreme Court.
Speaking for a unanimous bench of seven judges, Justice B.K. Mukherjea substantially obliterated the Madras Hindu Religious and Charitable Endowments (HR&CE) Act, 1951, terming the impugned provisions as “extremely drastic” in character.
So violent were the provisions against religious faith that the then Advocate General of Madras stated that he “could not support the legality of these provisions”.
It is left to one’s imagination how drastic the provisions of the Act must have been to lead the Advocate General to concede the case before the Supreme Court.
The story does not end here. As a result of the judgment in Shirur Mutt, the legislature of the erstwhile Madras State enacted in 1954 an amendment Act with the purpose of removing the defects pointed out by the Supreme Court.
Again, the Act was challenged in SudhindraThirthaSwamiar v. Commissioner, H.R.C.E. (1955) before the Madras High Court. This Act too was struck down as it suffered from the same defects as the original enactment.
The Orissa Hindu Religious Endowments Act, 1939 also has the distinction of being struck down by the Supreme Court twice — first in Sri Jagannath v State of Orissa (1954) and then in Sadasib Prakash Brahmachari v. The State of Orissa (1956).
Opinion
Towards reducing India’s prison footprint (Page no. 7)
(GS Paper 2,Polity and Governance)
At the Constitution Day celebrations organised by the Supreme Court in November 2022, President DroupadiMurmu, a snippet of her journey with the audience. She reflected on her visits to prisons across India and the circumstances of those incarcerated.
She highlighted that these individuals were often unaware of their fundamental rights and had been incarcerated for prolonged periods for minor offences, while their families, struggling with poverty, were unable to bail them out.
President Murmu emphasised how the judiciary, executive, and legislature must work together to help them, and concluded by poignantly asking: How are we claiming that we are progressing as a nation.
In stark contrast, in June last year, Lieutenant-Governor of Delhi (L-G) Vinai Kumar Saxena directed the Delhi Development Authority (DDA) to allocate 1.6 lakh square metres of land to Delhi’s prison department to construct a district prison complex in Narela.
The DDA has received ₹135.79 crore from the prison administration for the land thus far, and is demanding a further payment of ₹29.88 crore.
Officials claim that the prison is to be constructed in two phases, the first for high-risk offenders and the second for undertrials.
In phase 1, which is expected to be completed by April 2024, a high-security jail is to be built in the complex with a capacity to lodge 250 high-risk prisoners.
The prison administration has incorporated stringent security measures in the design such as constructing high walls between cells to prevent inmates from viewing others, and interacting with each other, as well as building office spaces between cells to facilitate surveillance.
French philosopher Michel Foucault has extensively written about how the architecture of prisons is often used as a tool to surveil, torture, and break the souls of inmates.
With this prison design, the Delhi prison administration is essentially creating solitary confinement which will have a severe detrimental effect on prisoners’ mental health.
Frank Gehry, a renowned architect, offered a semester-long course at the Yale School of Architecture in 2017, on architecture and mass incarceration.
Explainer
A new coronavirus variant on the block (Page no. 8)
(GS Paper 2,Health)
India’s first case of the XBB.1.5 subvariant of Omicron was confirmed in Gujarat by the national genome sequencing consortium on December 31.
XBB.1.5 has been driving COVID-19 cases in the U.S. Studies of the strain indicate that it is highly transmissible and evades pre-existing immunity.
Yet it doesn’t seem to cause severe disease. But U.S. scientist Eric Topol wrote that it isn’t just superficially scary and we need to pay attention to it. The global prevalence of XBB.1.5 isn’t clear yet, although its parent strain has been detected in at least 35 countries. By December 30, XBB.1.5 accounted for 40.5% of all new cases in the U.S., up from 21.7% a week earlier.
XBB.1.5 is a recombinant, which means its genome is the product of the genomes of two different strains spliced together. This can happen when two strains infect a person at the same time; a recombinant variant is produced as they replicate together.
Recombinant strains also arise when existing recombinant strains mutate. Previous recombinants include XD (Delta + Omicron), XE (BA.1 + BA.2), and XBB (BA.2.10.1 + BA.2.75).
The XBB strain is descended from BA.2.10.1.1 and BA.2.75.3.1.1.1. It mutated further and became XBB.1.5. XBB.1, which also descended from XBB, accounted for 14% of new cases in India around mid-December 2022.
The defining mutation of XBB.1.5 is F486P. F486 is a part of the virus’s receptor-binding domain (the part of the spike protein that attaches the virus to a cell) and an important site that antibodies against the Omicron variant target. So a mutation here portends some ability to evade immune defences.
F486P is an unlikely mutation. Every amino acid is encoded by three nucleotides. In almost all mutations thus far, one nucleotide substituted another. But F486P required two nucleotide substitutions (TTT → CCT). ‘T’ being replaced with ‘C’ is also improbable.
On December 28, immunologist Yunlong Cao reported that XBB.1.5 is as immune-evasive as XBB.1. Both XBB and XBB.1 were more immune-evasive than BA.5.2 (its descendant BF.7 is surging in China) and in fact are the most evasive strains so far. Cao also wrote that a prior breakthrough infection by BF.7 didn’t appear to confer significant protection against an XBB.1.5 infection.
What is the new delimitation exercise by Assam? (Page no. 8)
(GS Paper 2,Polity and Governance)
Assam remerged four districts with the ones they were carved out of four days after the Election Commission of India (ECI) notified the initiation of the delimitation of Assembly and Parliamentary constituencies in the State on December 27, 2022.
Many welcomed the ECI decision but questioned the use of the 2001 Census figures for the readjustment of the constituencies and an alleged bid to make Muslims less politically relevant.
Delimitation is the process of redrawing boundaries of Lok Sabha and State Assembly constituencies based on a recent census to ensure each seat has an almost equal number of voters.
It is ideally carried out every few years after a Census by an independent Delimitation Commission formed under the provisions of the Delimitation Commission Act.
Delimitation panels were set up thrice (1952, 1962 and 1972) regularly before the exercise was suspended in 1976 in view of the family planning programmes in the States.
The last Commission was set up in 2002 but before its exercise was completed in 2008, the delimitation of four north-eastern States was deferred due to “security risks” through separate presidential orders.
Apart from law-and-order, various organisations in Assam, including the BJP, were opposed to delimitation in 2008 as they wanted it to be done only after the updating of the National Register of Citizens (NRC) to weed out “illegal immigrants”.
The Central government reconstituted the Delimitation Commission for the four north-eastern States and the Union Territory of Jammu and Kashmir on March 6, 2020.
The exercise was imminent but Section 8A of the Representation of People Act, 1950, cited by the ECI for initiating delimitation and the use of the 2001 Census data have raised hackles.
Section 8A only allows reorientation and rules out any change in the total number of parliamentary and Assembly constituencies. Airing a similar view, Congress leader DebabrataSaikia said basing the delimitation on the 2001 Census would be unjust, specifically after the ECI used the 2011 Census for completing the exercise in Jammu and Kashmir, where the number of constituencies increased.
All India United Democratic Front MLA Aminul Islam sniffed a political agenda behind using the 2001 Census as the 2021 Census could reveal a few reserved Assembly seats now have Muslims in a majority, necessitating their de-reservation. Assam has 16 Assembly seats reserved for the Scheduled Tribes and eight for the Scheduled Castes.
News
Exploding number’ of Indian illegal immigrants came to Austria: Minister (Page no. 10)
(GS Paper 2,International Relations)
Last year witnessed “exploding number of Indians” who arrived at the borders of Austria as illegal immigrants, said the Foreign Minister of Austria Alexander Schallenberg on January 2, 2023.
The Minister made the comment soon after the Indian and the Austrian teams signed a Comprehensive Migration and Mobility Partnership Agreement that Mr Schallenberg described as “most important”. He called for dialogue to resolve the ongoing conflict in Ukraine and described India as a voice of “peace” and “reason”.
“Most importantly, today we just initialled a Comprehensive Migration and Mobility Partnership Agreement. This is of strategic importance for my country, Austria.
This is a sign of a very intensified cooperation in a matter which is of high importance to us. Because, last year we experienced the highest number ever of asylum seekers in Austria — over one hundred thousand. And we had exploding numbers of Indians coming illegally via Serbia to Austria.
The Austrian Minister said the number of applications for asylum from Indian citizens in Austria had reached from 600 in 2021 to “suddenly” 18,000 during last year and added, “The numbers have now decreased.
We have pressured our Serbian friends to align their visa liberalisation policy with the EU policy that they have done thankfully.
The problem is not immigration; the problem is not migration. To be very clear, we want that. We need that. The problem is illegal immigration and here we are having a very common view that this is something we don’t want.
We need immigration controlled by States and not by organised crime and human traffickers. Mr Schallenberg appreciating contribution of “tens and thousands of (resident) Indians” towards the Austrian society.
As per the Comprehensive Migration and Mobility Agreement, said the Austrian minister, the Government of India will undertake to take back the illegal immigrants from India while Austria will ensure ease of movement for “students, scholars and skilled workers” from India.
Online games must register with the self-regulatory body, say draft rules (Page no. 12)
(GS Paper 2,Government Policies and Interventions)
The Ministry of Electronics and Information Technology on Monday proposed an amendment to bring online gaming under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The changes, released for public consultation, would require all online games to register with any self-regulatory body approved by the Ministry.
This model is similar to the rules in place for digital news sites and streaming services under the IT Rules. Any game that allows or permits wagering on its outcome is effectively a no-go area.
It is the SRO [Self-Regulatory Organisation] that will determine what constitutes prohibited wagering. If there is a practice where some foreign betting websites are permitted to advertise on Indian intermediaries, it is certainly our intent that it must not be permitted.
It’s not clear if those games that have been recognised in courts as games of skill will continue to be able to operate under this policy.
This [framework] will boost the legitimate domestic online gaming industry, ensuring greater transparency, consumer protection and investor confidence, co-founder and co-CEO of Games24x7 said in a statement. The firm publishes rummy and fantasy sports games that allow players to stake real money.
The All-India Gaming Federation (AIGF), whose members typically offer such games, welcomed the publishing of the draft amendment.
ST Commission holds its ground on impact of new rules on Forest Rights Act (Page no. 12)
(GS Paper 3,Environment)
In a sign of escalating conflict between the government and the National Commission for Scheduled Tribes over the Forest (Conservation) Rules (FCR) 2022, NCST Chairperson Harsh Chouhan said that the ST body’s position on the new rules being violative of the Forest Rights Act, 2006 “will be the same” even as the Environment Ministry has dismissed these concerns.
The Commission’s stand will be the same. It is the Commission’s duty to intervene and recommend corrective measures whenever any rules run the risk of violating rights of tribespeople. This we will continue to do.
This comes after Environment Minister Bhupender Yadav wrote to the NCST dismissing the concerns flagged by Mr. Chouhan, saying they were “not legally tenable.
Flagging concerns over the provision in the new rules that proposes to do away with the consent clause for diversion of forest land for other purposes, the Commission had recommended that these rules should be put on hold immediately, in a letter to the Ministry of Environment, Forest and Climate Change (MoFCC) in September 2022.
In response, Mr. Yadav has insisted that the rules were framed under the Forest (Conservation) Act, 1980 and that the NCST’s apprehension of these rules being in violation of the Forest Rights Act (FRA), 2006 was “not legally tenable”. The Minister added that the two statutory processes were parallel and not dependent on each other.
Citing Rule 9(6)(b)(ii), the government said the FCR 2022 already provides for diversion of forest land “only after fulfilment and compliance of all provisions, including settlement of rights under the Forest Rights Act” and also does not bar or infringe upon the operation of other laws mandating consent of Gram Sabhas.
The NCST had pointed out that the FCR 2022 had done away with the clause to mandatorily seek consent of Gram Sabhas before the Stage 1 clearance, leaving this process to be done later and even after Stage 2 clearance.
In such a scenario, project proponents, having received partial clearance, will be pushing State and Union Territory governments for “diversion at the earliest”, which would be “seriously impacting the process of recognition of rights under the FRA.
The Commission had also pointed out that between 2009 and 2018, of the 128 applications for forest diversion for mining, 74 were cleared at the Stage 2 and 46 at the Stage 1, and none of the rejections were based on FRA non-compliance.
It added that in a subset of 14 cases, all post-2014) certificates showing the completion of the FRA process were issued “in violation of ground realities” and “no CFR (Community Forest Resources) process had been completed anywhere”. The Commission said the new Rules will only increase such violations.