BREAKSPACE Season 8 Issue 23

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Sabrimala: The saga continues

The Chief Justice of India, Ranjan Gogoi, has asked all petitioners seeking a review
of the court’s September 28th order of allowing women of menstrual age to enter
the temple. The primary reason stated for this is the inability of Justice Indu
Malhotra to attend the proceedings. The learned judge is on medical leave and
shall return, possibly, after the 30th January.

The five judge Bench of the Supreme Court delivered the landmark verdict,
declaring in the process that ‘exclusion based solely on the menstrual status of
women was a smear on the dignity of women’ and that the bar on women of
menstrual from not entering the temple amounted to ‘treating women as the
children of a lesser God’.

This judgement has shaken the very foundations of the state of Kerala and has
garnered interest of people from the rest of the country. Reactions to it include
violent protests, deaths resulting from clashes between different factions and the
police putting in a major effort to ensure peace in the area. The huge number of
review petitions have not come as a surprise.

A major issue in the whole judgement, a fact that many claim has not been
considered by the majority of the venerable Bench, is that the ideals of reform and
equality cannot be used as an excuse to render a religious practice from existence
based on a PIL by ‘third parties’ who lack belief in the Sabrimala deity or the
customs and traditions surrounding it.

Justice Malhotra, the lone dissenting voice on the bench, used the above point to
declare her dissent. She said that the bar was an essential practice to the religion.
Any attempt to impose the court’s morality on a religion would tantamount to a
violation of a fundamental right, “all persons are equally entitled to freedom of
conscience and the right to freely profess, practice, and propagate religion subject
to public order, morality and health”, that is guaranteed to every Indian citizen by
Articles 25-28 of the Constitution of India.

This lone voice of dissent has become a rallying point for all those opposing the
judgement, with them claiming that a majority of women who broke the bar and
entered the temple were not believers of the faith and its deity. They have also
argued that the right to move to the Supreme Court for the violation of
fundamental rights must be reserved for those whose rights have been violated,
that is those who worship the deity.

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Telangana High Court seeks action-taken report (ATR) on
relief measures for Silicosis victims’ kin
The Telangana High Court on Tuesday directed the Central and State governments
to file action-taken report (ATR) on the fate of compensation to the families of
workers who suffered due to silicosis in Mahabubnagar district. In the 1970s,
hundreds of women from Mahbubnagar’s villages lost their husbands to silicosis, an
occupational hazard that could have been prevented if safety protocols had been
followed.

A division bench comprising Chief Justice Thottathil B. Radhakrishnan and Justice

A. Rajasheker Reddy instructed that officials and departments of both governments
should file affidavits on the compensation amounts paid to the kith and kin of the
workers. The bench had taken up the detailed news story published by The Hindu
on the families of workers affected by silicosis not getting compensation as a Public
Interest Litigation.

Hearing the petition first time on Tuesday, the bench sought clarification from the
Telangana government on the matter. Advocate-General B. S. Prasad explained
that the government had taken steps to pay compensation to the families of
workers. As the Advocate-General submitted that a committee was formed in the
matter, the Chief Justice observed that formation of committees was routine. On
learning that the High Court had earlier heard the matter through another writ
petition, the bench said families of the workers would have got justice if the Central
government and State government had co-ordinated with each other.

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Research fellowship hike likely to be notified by February

With hundreds of student-researchers in several institutions across the country

picketing for a hike in fellowships, two senior officials said that a decision should be
out by the first week of February and the hikes could range from 25-50%. On
January 16 about 2,000 students and researchers, including from the Indian
Institutes of Technology (IITs), the labs of the Council of Scientific & Industrial
Research (CSIR) and several universities converged for a protest in Delhi. About
700 of them were briefly detained by the Delhi Police.

The students are gunning for at least an 80% hike in the research stipends given to
those pursuing their doctoral degrees. “These are legitimate demands and the
matter is being deliberated in the finance ministry. Hopefully, it should be
announced in a day or two,” said Shekhar Mande, Director-General, CSIR. The
CSIR and the University Grants Commission have the largest outlay towards
disbursing fellowships.

Another scientist, who was privy to the proceedings of the meeting, said the hike
was likely to be announced “before the Budget/Vote-on-Account (Feb 1).” and that it
would be above the norm. “It could be from 25-50% but not an 80-100% hike as
demands were being made. Currently, finance advisors of various ministries are
examining the required budgetary increases,” the scientist said. Typically these
stipends are significantly revised once in four years — the last being in 2014 — and
a committee of scientists had recommended an increase after a meeting last
December.

Inspite of being a leading scientific power in terms of research publications,

India spends about 0.7% of its GDP on research and development, which is
much lower than countries of comparable scientific prowess.

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A progressive move: Kerala government to cap life of
vehicles at 10 years

Principal Secretary of Transport K.R. Jyothilal has said the State will limit the
registration period for motor vehicles to 10 years, but will offer an unlimited term for
electric vehicles as part of promoting the green mobility initiative.

All motor vehicles in the State will have to switch over to electric, compressed
natural gas or liquefied natural gas within five years to achieve the e-mobility mode.
Charging stations would be made mandatory in all fuel outlets in the State through
legislation, Mr. Jyothilal said while addressing the Petroleum and Natural Gas
Regulatory Board’s (PNGRB) road show for promoting the 10th City Gas
Distribution (CGD) bidding round here on Tuesday.

Oil companies and stakeholders should exploit the opportunity arising out of the
switch over. Even they should look for tapping hydrogen as a fuel for vehicles. The
standard for vehicles should be made stringent, he said.
The feasibility of taking piped gas by the side of the proposed third and fourth
railway lines from Thiruvananthapuram to Kasaragod should be examined in view
of the delay and hurdles in acquiring land.

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Truly sustainable development? - Union Ministry of notifies
CRZ norms

The Union Ministry of Environment and Forest released the Coastal Regulation
Zone (CRZ), 2019 notification on Friday, opening up the coastline of the country for
construction and tourism activities.

The new notification could result in reduction of No Development Zones (NDZ)

significantly. This may pave the way for a construction boom along the coastline.
The tourism sector is to benefit from the relaxation of the NDZ. Tourism activities
could be undertaken in the designated areas to be identified by the State and
included in their respective Coastal Zone Management Plan, according to the
notification.

All the coastal States with such islands will prepare Integrated Island Management
Plans and get them approved by the Ministry. The 2019 notification will come into
force in these islands only when the Plan is framed. B. Madhusoodana Kurup,
former Vice Chancellor of the Kerala University of Fisheries and Ocean Studies,
Kochi, said the new notification failed to acknowledge the issues of global warming
and sea level rise.

CRZ regulations were first introduced in 1991 and subsequently revised in 2011. A
coastal hazard line was established taking into account natural disasters including
the 2004 Indian Ocean tsunami. While the 2011 notification recognised that there
were areas of high erosion and vulnerability along the coast, few attempts were
made to develop this hazard line scientifically or transparently across the country to
regulate development. One amendment, in July 2018, removed the hazard line
from the main regulation without consulting the public. In the new 2018 notification,
as well, all reference to a hazard line has been removed and is replaced with a
fixed setback line.

Big hotels, restaurants, houses, coastal highways and small and large port facilities
can now be built closer to the shoreline. Increased coastal tourism translates into
further destruction of lagoons, marshland and other coastal ecosystems and their
services. In fact, a limited study of the Tamil Nadu coastal districts from 2009 found
that lakhs of crores of public investment, ecosystems and land are at risk from a
one metre rise in average sea levels.

The cyclones Ockhi and Vardah are fresh in people’s memories and so is the
experience of loss of life and property. These frequent weather-related coastal
vulnerabilities are, however, omitted in the CRZ 2018, which moved the concept of
vulnerability and the hazard line from being at the heart of the regulatory
mechanism to an optional appendage in the law applicable for a vaguely worded
section on ‘disaster management’. The document trims the list of restricted activities
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in the ecologically sensitive CRZ-I areas and erases baselines. These include
original baselines of what constituted this coastal zone (where it begins and ends,
based on high water marks), what makes for a violation and further, what action
should be taken for violations thus far and in future. Meanwhile, shorelines are
already eroding due to sand mining controlled by mafias and building of seawalls
along the coast.

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The inflation conundrum

The multi-month low retail and wholesale inflation prints for December pose an
interesting challenge for policymakers and the central bank. Inflation in Consumer
Price Index (CPI), at 2.19 % in December, is at an 18-month low, while the WPI, at
3.8%, is at an eight-month low. The Reserve Bank appears to have been blindsided
by the CPI number, which is way below projections made during its last few
monetary policy pronouncements. The RBI has maintained a CPI projection of
4.4-4.8% for the second half of fiscal 2019. Even in the October policy
announcement, the bank projected 3.8-4.5% retail inflation in the second half with
upside risk, and even changed its policy stance to “calibrated tightening” from
“neutral”. The MPC and the RBI may well want to reassess the robustness of their
inflation projection mechanism in light of the data coming in. When the new
Governor, Shaktikanta Das, sits down with the monetary policy committee (MPC) in
early February he may well have to return to a “neutral” stance given the soft trends
in headline CPI. There may even be pressure on him to look at a rate cut,
especially given the weak economic data coming in — factory output growth was a
low 0.5% in November with manufacturing showing a contraction. The automobile
industry, the first to feel the effect of an economic slowdown, has seen sales falling
over the last two months.
 
The inflation data have also thrown a curveball at policymakers in that their different
components show divergent trends. So, while headline CPI inflation is trending
lower, core inflation is still sticky at close to 6%. Again, there is a divergence
between core rural and urban inflation — the former is trending higher at 6.34%
while the latter is heading downward at 5.26% in December. Curiously, rural health
and education index numbers are high. The point with all this divergence in data is
that monetary policymaking is a challenge. Governor Das alluded to this in a recent
speech where he pointed to the divergences and volatility in different sub-groups as
a major challenge in inflation assessment and projection. But the broader question
is whether the interest rate structure is lagging behind the big structural change in
inflation in the last few years. According to Mr. Das, headline CPI inflation has
moderated from around 10% in 2012-13 to 3.6% in 2017-18 and 3.7% in April-
December this fiscal. Yet the nominal interest rate structure has not changed
significantly, leading to rather high real interest rates. Prominent policymakers,
including principal economic adviser Sanjeev Sanyal, have called for the RBI to
take a re-look at the interest rate structure. It will be interesting to watch how the
RBI under the new Governor reacts to these calls.

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The danger of reciprocity: on the independence of the
Supreme Court

Independence, impartiality and fearlessness of judges are not private rights of

judges but citizen’s rights. Ultimately judicial legitimacy/ power rests on people’s
confidence in courts. We have yet another controversy surrounding the supreme
court, with the collegium revisiting decisions made at an earlier meeting and
recommending the elevation of two junior judges to the Supreme Court. No one has
any doubts about the competence or integrity of Justice Sanjiv Khanna and Justice
Dinesh Maheshwari, but the manner in which it was carried out puts the spotlight
once again on the controversial collegium system of judicial appointments.
This seriously undermines the independence of judges and raises unnecessary
doubts about the credibility of the highest court as the government is not only the
biggest litigator but also the greatest threat to the abuse of power. Judicial review
as a concept is supposed to control the government and keep it in check.

How has this panned out in the past? Let’s look back at the Justice K.M. Joseph
case. He had struck down the Modi government’s imposition of President’s rule in
Uttarakhand and saw the government returning the recommendation for his
elevation to the Supreme Court to the collegium last April — his appointment was
cleared in August. This time the government not only did not return the
recommendation to the collegium for reconsideration, but approved the
appointments instantly.

Take the case of Justice A.N. Ray, who was appointed Chief Justice of India (CJI) in
1973 superseding three senior judges, or Justice M.H. Beg, who was appointed CJI
superseding Justice H.R. Khanna in 1977. Both Justice Ray and Justice Beg were
excellent judges, but favoured the government. They were considered not forward-
looking judges but judges who looked forward to the office of the CJI.

In the bank nationalisation case (1970), while as many as 10 judges went against
the government, Justice Ray approved the government’s action. Similarly, Justice
Beg, in the Indira Gandhi election case, held that while democracy is the basic
structure, free and fair election is not.

The National Judicial Appointments Commission (NJAC) was struck down by the
Supreme Court because it would have compromised the independence of the CJI
and given a role to the government in the appointment of judges. Unlike in the U.S.
where judges are appointed by the President and are known to be leaning towards
the Democrats or Republicans, Indian judges are not supposed to have any political
affiliation. But is it possible to completely insulate judges from governmental
influence? The answer is no — as George Orwell pointed out in 1984, the
government is everywhere, and judges as fellow human beings do get influenced
by it. The judiciary asserts its position only when the government is weak. This

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collegium system was asserted when we had weak Central governments in the
1990s.

‘Power’ and ‘influence’ are fundamental concepts in society. ‘Influence’ is

sometimes considered to be an aspect of ‘power’. Indira Gandhi was influential
because she was powerful. Prime Minister Narendra Modi is, similarly, not only
powerful but hugely influential. According to the American sociologist, Alvin Ward
Gouldner, the universal norm in human societies is that individuals are obligated to
reciprocate favours received. Gouldner articulated the “norm of reciprocity” in the
following manner: “people should help those who have helped them” and “people
should not injure those who have helped them”.

In his NJAC judgment (2015), Justice J.S. Khehar discussed the issue of reciprocity
at length in striking down the commission. He referred to Laura E. Little’s work on
American judges who felt obliged to the President for nominating them and
Senators who helped them in the confirmation process. Justice Khehar therefore
preferred exclusion of the political executive from the appointment of judges as a
feeling of gratitude towards the government impacts the independence of the
judiciary. It was for this very reason that even B.R. Ambedkar wanted to insulate the
judiciary from political pressures.

In his autobiography, Roses in December, the former Chief Justice of the Bombay
High Court, M.C. Chagla, who also served as a Minister in Indira Gandhi’s Cabinet,
boldly stated the adverse impact of supersession when he said, “the effect of these
supersessions was most deleterious on the judges of the Supreme Court who were
in the line of succession to the Chief Justiceship. Each eyed the other with
suspicion and tried to outdo him in proclaiming his loyalty to the Government either
in their judgments or even on public platforms.” A similar depiction of the apex court
was made by Justice H.R. Khanna, who himself was superseded, in his book,
Neither Roses Nor Thorns, when he recalled, “one of the new trends was the
change in the approach of the court with a view to give tilt in favour of upholding the
orders of the government. Under the cover of high sounding words like social
justice the court passed orders, the effect of which was to unsettle settled principles
and dilute or undo the dicta laid down in the earlier cases.”

The prospect of a 15-judge bench overturning Kesavananda Bharati . v. State of

Kerala (1973), which outlined the basic structure doctrine of the Constitution, does
not look too remote in the near future if the government continues to exert pressure
on the collegium and if the collegium, due to reciprocity, does not effectively assert
its power and independence. Most governments prefer pliable judges but many of
our judges remain wedded to their oath and decide cases without fear or favour.
True reciprocity affects humans but since our judges are addressed as ‘Lords’, let
them not have any feeling of gratitude towards anyone.

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FRBM. Committee Report: Centre’s debt-to-GDP ratio falls
while that of the states rises

While the Centre is moving in the right direction in terms of meeting the N.K. Singh
Committee recommendations on public debt, the States are moving in the opposite
direction, data released by the government show.
According to the Status Paper on Government Debt for 2017-18, the Centre’s total
debt as a percentage of GDP reduced to 46.5% in 2017-18 from 47.5% as of March
31, 2014. The total debt of the States, however, has been rising over this period, to
24% in 2017-18, and is estimated to be 24.3% in 2018-19.
In absolute terms, the Centre’s total debt increased from ₹56,69,429 crore at the
end of March 2014 to ₹82,35,178 crore in 2017-18, representing a 45% increase.
The total debt of the States increased from ₹24,71,270 crore to ₹40,22,090 crore
over the same period, an increase of almost 63%.

The N.K. Singh-headed FRBM (Fiscal Responsibility and Budget Management)

Review Committee report had recommended the ratio to be 40% for the Centre and
20% for the States, respectively, by 2023. It said that the 60% consolidated Central
and State debt limit was consistent with international best practices, and was an
essential parameter to attract a better rating from the credit ratings agencies.

“Outstanding liabilities of States have increased sharply during 2015-16 and

2016-17, following the issuance of UDAY bonds in these two years, which was
reflected in an increase in liability-GDP ratio from 21.7% at end-March 2015 to
23.4% at end-March 2016 and further to 23.8% at end-March 2017,” the status
report said.

“The total outstanding liabilities as a percentage of GDP stood at 24% as at end-

March 2018 and is expected to move upward to 24.3% at end-March 2019.” This,
combined with the fact that ratings agencies have predicted that the combined
fiscal deficit of the States to be 3.2% of GDP in financial year 2020 (higher than the
prescribed 3%), and it begins to look increasingly unlikely that the States will meet
their 20% debt-GDP ratio target by 2023. The report, however, says that the States
do have some fiscal space to reduce their borrowing in the coming years due to the
large cash surpluses they hold.

“State governments as a group have exhibited a tendency to hold large cash

surpluses/investments in Cash Balance Investment Account on a consistent basis
while at the same time resorting to market borrowings to finance their GFD (Gross
Fiscal Deficit),” the report said.

“This indicates scope for reducing the quantum of market borrowings by State
governments in case they bring down their cash surpluses (parked as investment in
treasury bills of the Central government),” the report added.
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Sports Update:

• Indian team wins first ODI against New Zealand in New Zealand after almost 10
years
• Rafael Nadal and Novak Djokovic make it to the semi-finals in the men’s event of
the Australian Open while 7-time champion Serena Williams crashed out in the
semi-finals of the women’s event.
• Vishwanathan Anand and Magnus Carlsen are going neck and neck as leaders
in the Tata Steel Masters (being held at Wijk Aan Zee, Netherlands) with 4 more
games remaining. The next round will see Anand facing Carlsen with black
pieces in what could be a potential decider. But they were also joined by the
Russian GM Ian Nepomniachtchi in the lead with 6 points.

Variation in prices of important, well, things:

• Cost of 1 gm of 24 carat gold reduces from INR 3368.98 yesterday to INR
3379.68 today, a decrease of 0.15 %
• BSE Sensex dipped 0.92 % to INR 36,108.47 at the close of business today
• NSE Nifty also dipped 0.84 % to INR 10,831.50 at the close of business today
• The cost of 1 USD rose to INR 71.23

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