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The Centre surprised the Supreme Court by suddenly seeking a reference of the Lieutenant Governor versus Aam Aadmi Party regime dispute to a larger Bench of seven judges on what may be the last day of the hearing.
The Centre's unexpected move came a day after it had completed oral arguments before the Constitution Bench. Mr. Mehta's request came as senior advocate A.M. Singhvi, for the Delhi government, was about to begin his closing submissions.
The Bench reserved the case for judgment immediately after Mr. Singhvi completed his rejoinder in which he said the court should lay down in “black and white” the contours of power between the Delhi government and the Centre to avoid “overreach” by the latter.
Mr. Mehta said all he wanted was to just submit a two-page note on the point. The case covered "issues of federalism between the Union and a Union Territory". "All the points were argued without mentioning the word 'reference.
The last few days of hearings in the case had seen the Centre face tough questions from the Constitution Bench, including one by Chief Justice Chandrachud about "the point of having an elected government in Delhi if the administration of the national capital is supposed to be carried out at the beck-and-call of the Centre".
This case came up before the Supreme Court at least 10 times in one year. Not once did the Centre mentions the need for reference to a larger Bench.
We cannot repeat the ‘capital’ mantra every time. Of course, it is the capital, and it is a capital with a legislature representing a democracy. It will be unprecedented for a Constitution Bench to consider the question of reference to a larger Bench at the stage of rejoinder.
Both Centre and Delhi governments are contesting for power over civil servants in the National Capital. Protests against the Lieutenant Governor had coincided with the hearings in the court, prompting the Centre to complain before the Bench that the Kejriwal government was resorting to “theatrics”.
This dispute over the control of administrative services is part of a long-standing power spat between Arvind Kejriwal’s government and the Central government.
States
Spot Bellied Eagle Owl spotted in Seshachalam forest of Andhra Pradesh for the first time (Page no. 5)
(GS Paper 3, Environment)
A wildlife team recently stumbled upon a ‘Spot Bellied Eagle Owl’ (Bubo Nipalensis) for the first time in Seshachalam forest, and for the third time in Andhra Pradesh.
The bird’s habitat, found on large trees in thick forests, is spread across the Indian sub-continent. But it was sighted only twice in the State earlier, and both the times it was at Nagarjunasagar Srisailam Tiger Reserve(NSTR).
A team, comprising ornithologist K. Karthik Sai (known as ‘Birdman Karthik’), wildlife photographer Gopi Lakkala and Bhakarapeta Forest Range Officer Dattatreya, spotted the bird on January 7 when it ventured into the Talakona forest area.
The bold predatory bird, measuring 20-25 inches in length and weighing between 1.5 kg and 2 kg, feeds on small rodents and lizards.
The bird makes a strange scream similar to humans and it is hence called the ‘Ghost of the Forest’ in India and ‘Devil Bird’ in Sri Lanka.
The team also spotted a ‘Mottled Wood Owl’ (Strix Ocellata) last weekend in the fields abutting Chamala forest on the Tirupati-Annamayya inter-district border.
The ‘Mottled Wood Owl’ sighted recently in Chamala forest on the Tirupati-Annamayya district border.
Though both are labelled as ‘least concern’ in terms of population stability, the development assumes significance in view of their maiden sighting in the verdant Seshachalam ranges.
Editorial
Admonishments that endanger the Constitution (Page no. 6)
(GS Paper 2, Polity and Constitution)
Come April and it will be 50 years since the Supreme Court of India delivered its verdict in Kesavananda Bharati vs State of Kerala. The judgment is widely recognised as a milestone in India’s history.
In holding that Parliament’s power to amend the Constitution was not plenary, that any change that damages the document’s basic structure would be declared void, the Court, it was understood, had helped preserve the essence of our republic.
In the years since the verdict — if not in its immediate aftermath — its importance has been recognised by successive governments.
During this time, most criticism of the doctrine has been confined to the manner of its application rather than its legitimacy. But last week, India’s Vice-President Jagdeep Dhankhar launched a salvo of attacks at the Supreme Court, by calling into question the ruling’s correctness.
Faced as we are with far greater issues of civic concern, this debate might well be regarded as tedious, if only the arguments made against the judgment were not part of what appears to be a concerted effort at undermining the judiciary’s importance.
Over the course of the last few months, not a day has gone by without one member or the other of the political executive excoriating the Court over its apparent excesses.
Much of this criticism has been aimed at the functioning of the collegium — a body of senior judges that makes binding recommendations on appointments and the transfer of judges.
The Union Minister of Law and Justice, Kiren Rijiju, and indeed Mr. Dhankhar, have repeatedly doubted the Court’s judgment in 2015, in which it struck down efforts to replace the collegium with a National Judicial Appointments Commission (NJAC). That criticism has now turned sharper, with the Vice-President’s diatribe against Kesavananda.
In his maiden address to the Rajya Sabha in December 2022, Mr. Dhankhar claimed that the striking down of the NJAC had no parallels in democratic history. A “duly legitimised constitutional prescription,” he claimed, “has been judicially undone.” Speaking on January 11 at the 83rd All India Presiding Officers (Assembly Speakers) Conference in Jaipur, Rajasthan, he said that “in a democratic society, the basic of any basic structure is supremacy of people, sovereignty of parliament.
The ultimate power is with the legislature. Legislature also decides who will be there in other institutions. In such a situation, all institutions must confine to their domains. One must not make incursion in the domain of others.
Signals of a slow return to peace in Syria (Page no. 6)
(GS Paper 2, International Relation)
As Syria enters the 13th year of its lethal civil conflict, a bomb explosion in Istanbul on November 13, that killed six persons, seems to have accelerated a diplomatic process which could bring peace to that tormented land.
Turkish authorities immediately blamed Kurdish militants in Syria, represented by the People’s Protection Units (YPG, in its Kurdish acronym), for the bombing, and even arrested a Syrian woman who confessed to her affiliation with Kurdish organisations in Turkey and Syria.
From November 20, Turkey initiated “Operation Claw-Sword” with a series of bombings on Kurdish targets in both Syria and Iraq.
Turkish attacks are directed at the Syrian Democratic Forces (SDF) that includes the YPG and, under American protection, controls large parts of northeast Syria.
It has close ties with its domestic Kurdistan Workers’ Party (PKK), which is viewed by Turkey as a terrorist organisation.
Since May last year, Turkey has been threatening to launch a military invasion against Kurdish positions in Syria. This has been postponed on Russian insistence, giving Turkey an opportunity to consider diplomatic options to serve its security interests.
At the end of November, the Turkish President, Recep Tayyip Erdoğan, after an earlier conversation with Russian President Vladimir Putin, proposed a re-engagement with Syria, starting with meetings of Defence and Foreign Ministers, and culminating with a summit of the three leaders.
With Mr. Erdoğan facing elections in June, there are domestic considerations in play as well. A tough anti-Kurd posture appeals to Turkey’s nationalists, while improved relations with Damascus will facilitate the return of 3.7 million Syrian refugees whose presence has caused considerable unhappiness among the general Turkish population.
The meeting of Defence Ministers took place in Moscow on December 28 — the first Minister-level meeting between Syria and Turkey since 2011.
However, the complex issues that divide Syria and Turkey have become quickly apparent. Syrian media reported that Turkey had agreed to withdraw from territories that its forces occupy in northern Syria, and replaced by Syrian government forces.
But Turkey has immediately clarified that while it has no designs on Syrian territory, its troops will withdraw only when there is no terrorist threat — a clear reference to the SDF.
Opinion
The futility of underbalancing China (Page no. 7)
(GS Paper 2, Polity and Constitution)
One of the most disquieting puzzles the Indian strategic community has been confronted with since 2020 are the sources of New Delhi’s underbalancing behaviour towards China.
A lot has been written, not without reason, about the domestic political compulsions behind the BJP-led government’s chaotic China policy.
To begin with, there is a growing consciousness within the government and the larger strategic community in India that China is a threat to India’s national security.
There has been a clear shift of focus from the Line of Control (LoC) to the Line of Actual Control (LAC) and the consequent force redeployment has been considerable.
There has also been some decisive effort to curtail India’s tech-coupling with China. And yet, there doesn’t appear to be a comprehensive assessment of the China threat, and an evaluation of potential Indian responses.
What is missing is an unambiguous political commitment to meet the China threat. New Delhi’s China strategy is akin to closing one’s eyes and pretending it is dark around.
Needless to say, that the heart of the Indian approach is based on the belief that balancing China is fraught with risks. To begin with, it is neither possible nor desirable for India to actively man the entire LAC with China.
Secondly, responding to China could potentially spread the fight, thereby creating more flashpoints on the LAC, something New Delhi wants to avoid.
Thirdly, India’s underbalancing behaviour is also a result of the uncertain outcomes of a military escalation with a superior power.
And yet, there are also significant risks in the current strategy of underbalancing China. For one, given the absence of active Indian responses, a far more powerful China is likely to increase the tempo of its territorial pursuits.
More so, underbalancing China also entails a lack of political clarity regarding the China threat and the articulation of redlines to meet that threat.
This, in turn, leads to an uncertainty about what India’s friends and partners could or would do for India if there is a standoff with China.
There seems to be a strong strand of thinking in New Delhi that we should wait to build our capability to take on the China threat. But such a strategy of ‘threat postponement’ is based on misplaced optimism as China will continue to grow stronger than India. And by the time India catches up, if ever, it would be too late to take back the lost territory.
Text & Context
The conflict behind eco-sensitive zones (Page no. 7)
(GS Paper 3, Environment)
Ecologically sensitive zones (ESZ) are intended to protect ‘protected areas’ – national parks and wildlife sanctuaries – by transitioning from an area of lower protection to an area of higher protection.
ESZs are effectively insulating layers where humans and nature can be at peace with each other. However, the creation of these zones has provoked protests in Kerala and some other areas, in a precursor to what is likely to emerge in other parts of the country.
Protected areas cover 5.26% of India’s land area as 108 national parks and 564 wildlife sanctuaries. They are notified under the Wildlife (Protection) Act 1972.
National parks do away with permissions for even those activities permitted in ‘reserve forests’ while wildlife sanctuaries offer progressively diminishing concessions.
This is the rights-negating ‘fortress conservation model’, which conservation scientists abandoned long ago. It is also no longer present in Indian law, at least over forests within the purview of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 – a.k.a. the Forest Rights Act (FRA). FRA recognises the customary and the traditional rights (both individual and collective) of forest-dwellers on forest land, including inside protected areas.
India’s colonial forest regime should have recognised these rights but didn’t, resulting in a historic injustice that lawmakers tried to undo with the FRA.
The Ministry of Environment, Forests and Climate Change reckoned in 2009 itself that doing so would mean handing over at least four lakh sq. km – more than half of India’s notified forest area – to village-level institutions.
But as of June 2022, only 64,873.70 sq. km – or 16% – had come under the FRA. (The actual area is likely smaller because some areas have been counted multiple times for different rights.)
Then again, we must consider that this has been achieved in only a decade and a half, compared to no improvements in the six decades before.
It is a sign of what can happen when the power to determine rights is transferred from government officials to the gram sabhas at the habitation level, in an open democratic process.
News
Central panel asks Arunachal to review hydropower project (Page no. 10)
(GS Paper 3, Environment)
The Forest Advisory Committee has asked the Arunachal Pradesh government to file a fresh proposal for forest diversion and the construction of the Etalin hydroelectric project (EHEP) due to non-compliance to conditions stipulated by the FAC and the overwhelming pushback against the project in the region.
The FAC made the recommendations during a meeting it held on December 27, 2022, for which the top agenda was the deliberation and discussion of the diversion of 1165.66 hectares of forest land for construction of the 3,097 MW power plant in Dibang Valley District.
The committee noted that since the original proposal was sent by the State government way back in 2014, it was imperative to review the facts and figures presented, especially with regard to the number of trees that required to be felled.
Furthermore, the FAC rapped the government for poor compliance in earlier approved projects that have either stalled or not begun due to opposition from different groups.
The committee directed the State government to review the status of all approved projects and submit a report to the Ministry of Environment Forests and Climate Change (MoEFCC).
The FAC also suggested the formation of a high-level empowered committee to look into various concerns raised by large representations against the project.
Considering the above, FAC opined that the instant proposal cannot be considered in the present form and the revised proposal may be submitted for further consideration by the State Government.
The Etalin project, a joint venture of the Jindal Power Limited and the Hydropower Development Corporation of Arunachal Pradesh Limited, has attracted much controversy and opposition. In 2020, the National Board of Wildlife wrote that the “FAC appears to be ignoring established tenets of forest conservation and related legal issues while recommending this proposal”. The said that the ‘disastrous’ Etalin project needed to be junked.
The conservationists had also picked holes in the FAC’s site inspection report “bereft of details of locations within the forests visited, number of grids across an altitudinal range inspected, the status of vegetation therein, direct and indirect signs of wild animals listed in the various schedules of the Wildlife Act and overall appreciation of the ecological value of the area.
Report flags widening learning gaps (Page no. 12)
(GS Paper 2, Education)
As schools reopened after nearly two years of closure due to COVID-19, student enrolments increased to more than pre-pandemic levels but the learning gap widened for foundational skills in reading and arithmetic, reversing several years of improvement, finds the Annual Status of Education Report (ASER) 2022.
The national-level study shows that despite school closures during the pandemic, the overall enrolment figures, which have been above 95% for the past 15 years for the 6 to 14 years age group, increased from 97.2% in 2018 to 98.4% in 2022.
ASER is a household survey conducted across 616 rural districts and covers 6.9 lakh children in the age group of 3 to 16 years to record their schooling status and assess their basic reading and arithmetic skills.
The report is being brought out after four years and records the impact of school closures in 2020 and 2021, as well as the return to school of children in 2022.
The proportion of children in this (3-16 years) age group who are not currently enrolled also dropped to its lowest level ever to 1.6% from 2.8% in 2018, when the last full-scale ASER survey was conducted.
Government schools have seen a sharp increase in children enrolled from 65.6% in 2018 to 72.9% in 2022, reversing another trend of a steady decrease in student enrolments seen since 2006, when it was at 73.4%.
Despite the enthusiasm seen among parents and students towards schools, children’s basic literacy levels have taken a big hit, with their reading ability as compared to numeracy skills worsening much more sharply and dropping to pre-2012 levels.
The percentage of children in Class 3 in government or private schools who were able to read at the level of Class 2 dropped from 27.3% in 2018 to 20.5% in 2022. This decline is visible in every State, and for children in both government and private schools.
States showing a decline of more than 10 percentage points from 2018 levels include those that had higher reading levels in 2018, such as Kerala (from 52.1% in 2018 to 38.7% in 2022), Himachal Pradesh (from 47.7% to 28.4%), and Haryana (from 46.4% to 31.5%). Large drops are also visible in Andhra Pradesh (from 22.6% to 10.3%) and Telangana (from 18.1% to 5.2%).
Nationally, the proportion of children enrolled in Class 5 in government or private schools who can at least read a Class 2-level text fell from 50.5% in 2018 to 42.8% in 2022.
States showing a decrease of 15 percentage points or more include Andhra Pradesh (from 59.7% in 2018 to 36.3% in 2022), Gujarat (from 53.8% to 34.2%), and Himachal Pradesh (from 76.9% to 61.3%).