THE HINDU EDITORIAL – MAY 25, 2022
|
Caution and clarity The IPEF in its nascence
relies more on promise than prospect of tangible outcomes In a sudden decision not previously intimated,
India became one of a 13-nation economic initiative led by the U.S., on
Monday, as President Joseph Biden unveiled plans for an Indo-Pacific Economic
Framework for Prosperity (IPEF). The initiative is touted as a substantial
step by the U.S. as part of its decade-old “pivot to Asia”, and an attempt at
putting some “economic heft” into Indo-Pacific presence that has been on the
decline after its decision to quit the Trans Pacific Free Trade Agreement,
the CPTPP, in 2017. Officials say the IPEF framework has four “pillars”:
supply-chain resilience; clean energy, decarburization and infrastructure;
taxation and anti-corruption; and fair and resilient trade. Mr. Biden’s visit
to Japan and South Korea, attendance at the Quad summit and helming the IPEF
launch is also aimed at reassuring the Eastern hemisphere about the U.S.’s
focus. India’s joining is an equally strong statement of commitment to
Indo-Pacific goals and to broadening regional economic cooperation, particularly
after it walked out of the 15-nation RECEP. It is significant that all IPEF
members, other than India and the U.S., are a part of the RCEP free trade
agreement, and yet have chosen to be part of the U.S.-led initiative. Despite
the strong signaling from all sides, however, there are many aspects to the
IPEF that bear further scrutiny. Monday’s launch only signals the willingness
of the 13 countries to begin discussions on the contours. Much will depend,
as Prime Minister Narendra Modi stressed, on how inclusive the process is.
Second, U.S. officials have made it clear that it is not a free trade
agreement; nor will it discuss tariff reductions or increasing market access,
raising questions about its utility. Shorn of the rhetoric of Indo-Pacific cooperation,
there must be more clarity on its framework. The four pillars also lend
themselves to some confusion, drawing into question whether there is enough
common ground among the 13 countries that are part of very different economic
arrangements, as well as outliers (the U.S. and India), to set standards
together, or be open to issues that vary for each country. The U.S.’s
statement that the IPEF is essentially focused on “American workers” also
raises questions on whether increasingly protectionist global trends will
chafe. Each of the IPEF countries has considerable trade interests in China,
with most having large trade deficits. So, it remains to be seen how much
they will be willing to sign on with the IPEF. Already three ASEAN countries,
Cambodia, Laos and Myanmar, have decided to stay out of the framework’s
launch. Above all, given the fact that the U.S.’s previous initiatives (the
Blue Dot Network and the Build Back Better initiative) have made little
headway in changing the region’s infrastructural needs, the IPEF faces a
credibility challenge. Negotiators will need to move with both caution and
clarity before making any big promises on its benefits for the region. Serving those who serve Health workers need better
remuneration and safety guarantee, not just awards Recognition very often goes to those at the top of
the pecking order, and stays there. Credit seldom trickles down to the worker
at the bottom. The World Health Organization’s act of recognizing India’s
ASHA (accredited social health activists) and the polio workers of
Afghanistan is an attempt to right that wrong. It is a rare, and commendable
doffing of the hat for workers at the very bottom of the rung, and gives
credit where it is due. When WHO Director General Tedros Adhanom Ghebreyesus
announced the names of six Global Health Leader awardees at the opening
session of the World Health Assembly, over one million ASHAs and eight
volunteer polio workers found themselves being counted amidst people leading
from the front. The other awardees are Paul Farmer, co-founder of the NGO
Partners in Health, Ahmed Hankir, a British-Lebanese psychiatrist, Ludmila
Sofia Oliveira Varela, a youth sports advocate, and Yohei Sasakawa, WHO’s
Goodwill Ambassador for Leprosy Elimination. Dr. Tedros who picks the
awardees himself, said that the award recognises those who have made an
outstanding contribution to protecting and promoting health around the world,
at a time when the world is facing an unprecedented convergence of inequity,
conflict, food insecurity, climate crisis and a pandemic. The ASHAs
were honoured for their “crucial role in linking the community with the
health system, to ensure those living in rural poverty can access primary
health care services…” These workers, all women, faced harassment and
violence for their work during the pandemic, well documented in the media.
While the pandemic rewrote the rules, creating danger where mere routine
existed, it must be stressed that in general, their job, which takes them
into difficult-to-reach places and hostile communities, confers a measure of
privations. Even as they contribute to better health outcomes, this workforce
continues to protest across the country, for better remuneration, health
benefits and permanent posts. The eight volunteer polio workers of
Afghanistan (four of them women) were shot and killed by gunmen in Takhar and
Kunduz provinces in February 2022. Their work was crucial in a country where
wild polio virus type 1 is still circulating, WHO recorded. Clearly, certain
kinds of basic public health work are fraught with perils in several
continents across the world. It is the duty of the governmental agencies that
employ them to ensure their welfare, safety and security. While cheerleading
about the award is rightfully reaching a crescendo, what matters is how the
Indian government serves its last mile health workers who are its feet on the
ground, once the dust raised by their unexpected recognition has settled
down. A new road for India’s fiscal federalism After
the ‘Mohit Minerals’ judgment, states will now be free to exercise
independent power to legislate on GST SUHRITH PARTHASARATHY On
May 19, in Union of India vs Mohit Minerals, the Supreme Court of
India delivered a ruling which is likely to have an impact far wider than
what the centre might have imagined when it brought the case up on appeal. At
stake was the validity of a levy imposed on importers, of Integrated Goods
and Services Tax (IGST) on ocean freight paid by foreign sellers to foreign
shipping lines. The Gujarat High Court had declared the tax illegal. The
Supreme Court affirmed the ruling through Justice D.Y. Chandrachud’s judgment
and held that the levy constituted double taxation – that is, that the
importer, which was already paying tax on the “composite” supply of goods,
could not be asked to pay an additional tax on a perceived “service” that it
may have received. Just recommendations In making this finding,
the Court proceeded on a technical reading of various laws, in particular the
provisions of the Central Goods and Services Tax Act. That reading, in and by
itself, has limited implications. But the Court also made a slew of
observations, which, if taken to their logical conclusion by State
legislatures, could potentially transform the future of fiscal federalism in
India. It held, for instance, that both Parliament and the State legislatures
enjoy equal power to legislate on Goods and Services Tax (GST), and that the
Goods and Services Tax Council’s recommendations were just that:
recommendations that could never be binding on a legislative body. Reacting to the ruling, the Union Ministry
of finance has claimed that it “does not in any way lay down anything new”,
and that it “does not have any bearing on the way GST has been functioning in
India, nor lays down anything fundamentally different to the existing
framework of GST”. But a close reading of the judgment belies this
suggestion. Until now, governments across India have treated the GST Council’s
recommendations – even where they disagreed with them – as sacrosanct, because
they believed that this was indeed the law. What Mohit Minerals holds,
though, is that State governments, on a proper construal of the Constitution,
need to hardly feel circumscribed by any such limitation. As such, according
to the Court, State legislatures possess the authority to deviate from any
advice rendered by the GST Council and to make their own laws by asserting,
in the process, their role as equal partners in India’s federal architecture. Advent of Articles When, in July 2017, the
Union government introduced the GST regime through the 101st
constitutional Amendment, it did so based on an underlying belief that tax
administration across India needed unification. ‘One Nation, One Tax’, was
the mantra. To give effect to this idea, many entries in the State list of
Schedule VII of the Constitution were either deleted or amended. No longer
could State governments, for example, legislate on sale or purchase of goods
(barring a few exceptions, such as petroleum and liquor) through the ordinary
legislative route. Instead, a power to legislate on GST was inserted through
a newly introduced Article 246A. This provision over-rode the general
dominion granted to Parliament and State legislatures to bring laws on
various subjects and afforded to them an express authority to make
legislation on GST. In addition, the 101st
Amendment also established, through Article 279A, a GST Council. This body
comprises the Union Finance Minister, the Union Minister of State for Finance
and Minister of Finance from every State government. The Council was given
the power to “make recommendations to the Union and States” on several
different matters. These include a model GST law, the goods and services that
may be subjected to or exempted from GST and the rates at which tax is to be
levied. In framing the manner in which the Council’s votes are to be reckoned
with, the Union government was granted a virtual veto. As I wrote in these pages when the
Amendment was first introduced, there was some amount of confusion on whether
the Council’s decisions would be binding. The use of the word “recommendations”
suggested on the one hand that its decisions would be advisory, at best. But,
at the same time, the fact that Article 279A directed the establishment of a mechanism
to adjudicate disputes between governments on decisions taken by the Council
suggested that those governments would, in fact, be bound by any advice
rendered to them. If the former reading was to be deployed, the purpose
behind the introduction of a common GST would be in jeopardy. But the latter
interpretation effectively entailed a destruction of the well-laid plans of
the Constituent Assembly. Fiscal responsibilities that had been divided with
much care and attention between the Union and the States would now stand
dissolved. Not a symmetrical compact In its judgment in Mohit
Minerals, the supreme Court has provided what ought to be seen as the final
word on this conundrum. Although States had until now proceeded on a tacit
belief that the GST Council’s recommendations were binding, such an approach,
in Justice Chandrachud’s words, would run counter both to the express words
of the Constitution and the philosophical values underlying the language
deployed. Out federal compact, the judgment holds, is not symmetrical, in
that there are certain areas of the Constitution that contain a “centralizing
drift” – where the Union is granted a larger share of the power – and there
are other areas where equal responsibility is vested. Article 246A, which was introduced by the
101st Amendment, is one such clause. The provision provides
concomitant power both to the Union and to the State governments to legislate
on GST. It does not discriminate between the two in terms of its allocation
of authority. Tat allocation, according to the Court, cannot be limited by a
reading of Article 279S, which establishes a GST Council, and which treats
the Council’s decisions as “recommendations”. “If the GST Council was
intended to be a decision-making authority whose recommendations transform to
legislation,” wrote Justice Chandrachud, “such a qualification would have
been included in Articles 246A or 279A.” But in the present case, no such
qualification can be found. In perspective The Court’s ruling does
not mean that a legislature – whether Parliament or the States’ – cannot through
statutory law make the Council’s recommendations binding on executive bodies.
Indeed, insofar as the laws today make such a mandate, rulemaking by the
executive would necessarily have to be bound by the Council’s advice. But a
constitutional power, in the Court’s ruling, can never be limited through
statute. Such curbs must flow only from the Constitution. And in this case,
in the Court’s analysis, no restrictions on legislative power can be gleaned
on a meaningful reading of the Constitution. Today, because of the ruling in Mohit
Minerals, State governments will be free to exercise independent power to
legislate on GST. It is possible that this might lead to conflicting taxation
regimes, with the idea of ‘One Nation One Tax’ rendered nugatory. But as the
Court puts it, “Indian federalism is a dialogue between cooperative and
uncooperative federalism where the federal units are at liberty to use
different means of persuasion ranging from collaboration to contestation.” GST was conceived as a product of what
some described as “pooled sovereignty”. But perhaps it is only in an
administrative area, animated by contestation, where we can see synergy
between different sovereign units, where our nation can take a genuine turn
towards a more “cooperative federalism”. The executive seems more fragile than hurt sentiment There
seems to be an increased use of Section 153A IPC and Section 295A IPC, going
by data and anecdotal evidence SHRUTIKA & MAYANK YADAV In
yet another brute show of power, Dr. Ratan Lal, a Dalit academician, was
arrested for an ‘objectionable’ post on the Gyanvapi mosque row. He is
alleged to have promoted disharmony or enmity between religious groups
(Section 153A in the Indian Penal Code) and intentionally and maliciously
hurt religious sentiments (Section 295A in the IPC). His arrest adds to the trend
of increased use of the two provisions. The latest annual report of the National
Crime Records Bureau records more than four jumps (458%) of cases registered
under Section 153A since 2014; it almost doubled in the last two years. This does
not necessarily mean hurtful comments surged all of a sudden, as conviction
could only be secured in merely 20.4% of cases. Though no separate data is
available on Section 295A, anecdotal evidence suggests its increased use by
the executive. Legislative history The increased use of
these penal provisions draws our attention to the circumstances in which they
were enacted. In 1927, when Section 153A was already in existence, Section
295A was brought on the demand of a religious minority community which alleged
that a pamphlet titled ‘Rangeela Rasul’ published objectionable content
against its founder. The Legislative Assemble debates at the
introduction of Section 295A expressed concern about its subjectivity that
could be misused. The rationale behind the provision was to deal with
intentional insults to religion or outraging religious feelings. As best, the
Assembly members found it a temporary remedy for a temporary aberration, not
one that would be in active use a century later. A more direct measure was incorporated
through Section 295A, which would not require proving that the speech
promoted enmity or hatred between classes; now, a hurt sentiment would be
enough. It can be argued that it safeguarded the spirit of tolerance amidst
religious diversity. But its enhanced misuse raises the question: safeguard
for who and against what? The debates sensed and cautioned against a
looming threat over free speech. It was anticipated that it could be misused
to suppress honest, candid, and bona fide criticism, and hinder
historical research towards social reform. If individuals were allowed to
register complaints about a hurt religious sentiment, the courts would be
flooded with frivolous cases. Then there would be a sweeping class of
offences, where it cannot be objectively adjudicated if a crime has been
committed. Some safeguards However, there were
statutory safeguards that required deliberate intention and malice; and
judicial rulings that needed looking at – words used, intent, and effect to
ascertain criminality. Only a deliberate and aggravated form of religious
insult would attract the rigor of the provision. The judiciary laid down two ways to
measure the effect – one by establishing a link between speech and public
disorder, and by measuring the effects from the standards of a reasonable
man, and not from one who fears all hostile viewpoints. However, no attempt
was made to translate the safeguards into practice, which could have shielded
the dear ethos of free speech. A half-hearted attempt left us with a law that
cannot be enforced appropriately and is being let loose to chase and
dissenter. Element of subjectivity Unlike bodily harm that
can be verified, sentimental hurt cannot be tested against strict measures.
The element of subjectivity over-rides it as a sentiment’s vulnerability
could widely vary, every among those of the same religion. A critical inquiry of orthodox practices
and superstitious beliefs encourages social reforms. The need for an
intelligent counter is required much more amid the aggressive assertion of
religious beliefs by the socio-political hegemon. Even the 1927 Joint Select
committee appreciated the argument that a religious insult inflicted in good
faith, with the object of steering reform, would bring the follower’s
required attention to the critique. India’s Constitution celebrates diversity
with the guarantee of free speech. With that aspirational pledge, should not
the answer to hurt religious sentiment be tolerance, and not rampant criminalization?
This may be an unreal expectation in times of widespread hate and disharmony.
It is anomalous for a pluralistic, democratic, and secular nation that runs
on counter-discourses to criminalize speech for hurting fickle religious
sentiments. Even the statutory safeguards of ‘deliberate
intention and malice’ cannot be objectively determined. The police do not get
into the legislative nuances before registering a criminal case or making an
arrest. Philosopher Martha Nussbaum critiqued the law by saying that it
invites thugs to suppress speech on anything they dislike; she added that
given India’s political climate, several would take up this ugly invitation.
A hazy legal paradigm criminalizing hurting religious sentiment facilitates
the ruling dispensation’s strategy to stifle all dissent and use the law to
fuel divisive politics. On raging criminalization of free speech,
senior advocate Indira Jaising said that repeated use of law to stifle
dissent reflects state policy. “It is not a ‘misuse’; it is being used the
way the enforcement agencies want it,” she added. The executive is seemingly
more fragile than a citizen’s hurt religious sentiment. It sends out a clear
message that be it a stand-up comic script, a remark on the belief of walking
barefooted in reverence, or taking beef to school, India is no longer the
country to hold and express opinions challenging the state-backed
majoritarian rhetoric. |
