DAILY MAINS NEWSLETTER FOR UPSC | 10 APR 2021 | RaghukulCS

Daily Mains Newsletter For UPSC
| RaghukulCS

10 APRIL 2021

Index

Mains Value Addition

Mains Analysis

Topic No

Topic Name

Source

1

India does have a refugee problem

The Hindu

2

Challenge On Bench

Indian Express

Mains Value Addition

Freedom of Navigation Operations, US’s 7th Fleet and India’s EEZ

Syllabus-GS 2: IR

Analysis: –

  • The US Navy announced on April 7 that the USS John Paul Jones from its 7th Fleet had “asserted navigational rights and freedoms approximately 130 nautical miles west of Lakshadweep Islands, inside India’s exclusive economic zone, without requesting India’s prior consent, consistent with international law”.
  • It said “India requires prior consent for military exercises or maneuvers in its exclusive economic zone or continental shelf, a claim inconsistent with international law”, and the “freedom of navigation operation (“FONOP”) upheld the rights, freedoms, and lawful uses of the sea recognized in international law by challenging India’s excessive maritime claims”.
  • The Ministry of External Affairs responded that the government’s stated position on the UN Convention on the Law of the Sea (UNCLOS) “is that the Convention does not authorise other States to carry out in the Exclusive Economic Zone and on the continental shelf, military exercises or manoeuvres, in particular those involving the use of weapons or explosives, without the consent of the coastal state”.

After diesel, fertilisers to take toll on farmers; IFFCO hikes prices by 45-58%

GS 1: Communalism

Analysis: –

  • The Supreme Court on Friday said people are free to choose their own religion, even as it lashed out at a “very, very harmful kind” of “public interest” petition claiming there is mass religious conversion happening “by hook or by crook” across the country.
  • The Supreme Court on Friday said people are free to choose their own religion, even as it lashed out at a “very, very harmful kind” of “public interest” petition claiming there is mass religious conversion happening “by hook or by crook” across the country.
  • Instead, a Bench led by Justice Rohinton F. Nariman said people have a right under the Constitution to profess, practise and propagate religion.
  • Justice Nariman reminded Mr. Upadhyay of the fundamental right under Article 25 of the Constitution to freely profess, practise and propagate religion, subject to public order, morality and health.
  • Religious conversion is being done through a “carrot-and-stick” approach, Mr. Uapdhyay had claimed in his petition.

Copyright (Amendment) Rules, 2021 notified

Syllabus– GS 3: Taxes, GS 2: IR

Analysis: –

  • In a declaration of war on low-tax jurisdictions around the globe, US Treasury Secretary Janet Yellen has urged the world’s 20 advanced nations to move in the direction of adopting a minimum global corporate income tax.
  • She said the move attempted to reverse a “30-year race to the bottom” in which countries have resorted to slashing corporate tax rates to attract multinational corporations.
  • “Competitiveness is about more than how US-headquartered companies fare against other companies in global merger and acquisition bids…
  • It is about making sure that governments have stable tax systems that raise sufficient revenue to invest in essential public goods,” Yellen said in a virtual speech to the Chicago Council on Global Affairs.
  • It is important to work with other countries to end the pressures of tax competition and corporate tax base erosion,” Yellen said, indicating that the US would work with other advanced economies in the Group of 20 to achieve this.
  • In a declaration of war on low-tax jurisdictions around the globe, US Treasury Secretary Janet Yellen has urged the world’s 20 advanced nations to move in the direction of adopting a minimum global corporate income tax.

Mains Analysis

India does have a refugee problem

Why in News: –

In any case, refugee flows to India are unlikely to end any time soon given the geopolitical, economic, ethnic and religious contexts of the region.

Syllabus: -GS 2: International Relation

  • An issue that has come to be known as ‘the Rohingya crisis’ is a tragedy that was in the making for over several decades and concerns the plight of hundreds of thousands of people belonging to the Rohingya-Muslim minority community in Myanmar’s Rakhine State.
  • The current plight of the Myanmarese has been preceded by that of another group of Myanmarese, the Rohingya.
  • The debate was dominated by the Citizenship (Amendment) Act, 2019 and its impact on those seeking refuge in India, even though new refugees would not be benefited by the law since the cut-off year of the CAA is 2014.

Refugees versus immigrants

  • Illegal immigration is a threat to the socio-political fabric of any country, including India, with potential security implications.
  • Much of the debate in the country is about illegal immigrants, not refugees; the two categories tend to get bunched together.
  • And because we have jumbled up the two issues over time, our policies and remedies to deal with these issues suffer from a lack of clarity as well as policy utility.

Ambiguity in the framework

  • The main reason why our policies towards illegal immigrants and refugees are confused is that as per Indian law, both categories of people are viewed as one and the same and are covered under the Foreigners Act, 1946 which offers a simple definition of a foreigner — “foreigner” means “a person who is not a citizen of India”.
  • Needless to say that there are fundamental differences between illegal immigrants and refugees, but India is legally ill-equipped to deal with them separately due to a lack of legal provisions.
  • Recall that India is not a party to the 1951 Refugee Convention and its 1967 Protocol, the key legal documents pertaining to refugee protection.
  • The absence of such a legal framework also leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad hocism which, of course, often has its own ‘political utility’.
  • Ad hoc measures enable the government in office to pick and choose ‘what kind’ of refugees, it wants to admit for whatever political or geopolitical reasons, and what kind of refugees it wants to avoid giving shelter, for similar reasons.
  • At the same time, the absence of a legal framework increases the possibility of the domestic politicization of refugee protection and complicates its geopolitical fault lines.
  • The absence of a clearly laid down refugee protection law also opens the door for geopolitical considerations while deciding to admit refugees or not.

Legal, moral complexities

  • New Delhi has been one of the largest recipients of refugees in the world in spite of not being a party to the 1951 Refugee Convention and its 1967 Protocol.
  • For one, as is often discussed in India, the definition of refugees in the 1951 convention only pertains to the violation of civil and political rights, but not economic rights, of individuals, for instance.
  • Put differently, a person, under the definition of the convention, could be considered if he/she is deprived of political rights, but not if he/she is deprived of economic rights.
  • If the violation of economic rights were to be included in the definition of a refugee, it would clearly pose a major burden on the developed world.
  • On the other hand, however, this argument, if used in the South Asian context, could be a problematic proposition for India too.
  • And yet, this lop-sidedness is something New Delhi has traditionally highlighted, and justifiably so, as a reason for its non-accession to the treaty.
  • The West’s lopsided obsession with civil and political rights at the cost of economic rights is a convenient excuse with little moral backing.
  • Second, as a scholar B.S. Chimni has argued, “India should not accede to the 1951 convention at a time when the North is violating it in both letter and spirit.
  • India should argue that their accession is conditional on the Western States rolling back the non-entrée (no entry) regime they have established over the past two decades.
  • The non-entrée regime is constituted by a range of legal and administrative measures that include visa restrictions, carrier sanctions, interdictions, third safe-country rule, restrictive interpretations of the definition of ‘refugee’, withdrawal of social welfare benefits to asylum seekers, and widespread practices of detention.”
  • In other words, India must use its exemplary, though less than the perfect, history of refugee protection to begin a global conversation on the issue.

New domestic law needed

  • The answer perhaps lies in a new domestic law aimed at refugees.
  • The CAA, however, is not the answer to this problem primarily because of its deeply discriminatory nature:
  • What is perhaps equally important is that such a domestic refugee law should allow for temporary shelter and work permits for refugees.

Way forward: –

  • It is morally untenable to have a discriminatory law to address the concerns of refugees who are fleeing their home country due to such discrimination in the first place.
  • More fundamentally, perhaps, the CAA is an act in refugee avoidance, not refugee protection.
  • This is crucial because, in the absence of proper legal measures, refugee documentation, and work permit, refugees may end up becoming illegal immigrants using illicit means.
  • Put differently, the absence of a refugee law incentivizes illegal immigration into the country.
  • New Delhi must also make a distinction between temporary migrant workers, illegal immigrants, and refugees and deal with each of them differently through proper legal and institutional mechanisms.
  • Our traditional practice of managing these issues with ambiguity and political expediency has become deeply counterproductive: It neither protects the refugees nor helps stop illegal immigration into the country.

Question: –

The Rohingya crisis could be seen as merely symptomatic of modern Myanmar being long mired in internal conflict. Discuss.

Challenge On Bench

Why in News: –

The meeting of the collegium headed by outgoing CJI has ended in a deadlock, without a consensus on making any recommendation for appointment as SC judge.

Syllabus: – GS2: Judiciary

  • The Supreme Court collegium headed by Chief Justice of India (CJI) S A Bobde Thursday held its scheduled meeting to discuss possible candidates for appointment of judges in higher judiciary, but it remained inconclusive, sources said.
  • The brief collegium meeting was attended by all the five senior-most judges including Justice N V Ramana who has been appointed as the next CJI by President Ram Nath Kovind on April 6, they said.
  • No decision could be taken, they said and rubbished certain news reports of purported differences among some collegium members.

What is Collegium System?

  • The Collegium system is a valid system of appointment of judges in the Supreme Court(SC) & all High Court(HC)’s along with transfer of judges in the HCs.
  • In which a committee of the Chief Justice of India, four senior judges of the SC & three members of a HC(in case of appointments in the said HC)
  • It is based on the precedence established by the “Three Judges Cases” that created a system of checks & balances to ensure the independence of the senior judiciary in India.

Evolution of the Collegium System:

  • Indian constitution under Article 124 provides that President shall make SC judges appointments after consulting with the Chief Justice of India & other SC & HC judges as he considers necessary.
  • Similarly, for HC judges appointment, President under Article 217 should consult the CJI, Governor, and Chief Justice of the High Court concerned.
  • But within two decades of independence, the issue of appointment of judges in the high judiciary becomes a constant tussle between executive & judiciary.
  • In Shamsher Singh v. State of Punjab 1974 case, SC held that the approval of CJI is a must in appointing Judges of HC & SC.

The THREE Judges Case:

  • In First Judges case(1981)/ S P Gupta Case:
    • SC ruled that the recommendation made by the CJI to the President can be refused for “cogent reasons”,.
    • The judgement gave the Executive primacy over the Judiciary in Judicial appointments till the Second judge’s case.
  • In Second Judges case (1993)/ SC Advocates-on Record Association case(1993):
    • SC introduced the Collegium system, where CJI only needs to consult two senior-most judges over judicial appointments & transfers.
    • However, on objection raised by the executive on the appointment, Collegium may or may not change their recommendation, which is binding on the executive.

In Third Judges Case(1998):

  • SC expanded the collegium to a five-member body, comprising the CJI &four of his senior-most colleagues, to form an opinion on judicial appointments & transfers.
  • Present Procedure for Higher Judicial Appointments:

In Supreme court

  • The SC CJI consults its other collegium members together with senior-most judges of the High court to which recommended person belongs.
  • The collegium then sends the recommendation to the Law Minister, who forwards it to the PM to advise the president.
  • The 1st recommendation can be returned by the center to the SC collegium to reconsider its decision but if the collegium recommends with or without change in decision, the center needs to accept it.

In High Court: –

  • HC judges are appointed based on the recommendation of the Chief Justice of the HC in consultation with two senior-most colleagues to SC collegium.
  • Then SC collegium decides whether to forward the names to the centre or not.
  • Finally, the President on the advice of the Council of Ministers headed by the PM appoints the HC judges.

Problems in the Collegium System

  1. Collegium System is non-transparent & closed in nature of the absence of a system of checks & balances.
  2. According to Law commission’s 230th report, nepotism, corruption, personal patronage is prevalent in the functioning of the collegium system.
  3. The seniority rule in elevation postings sidelines the merit-based appointments.
  4. Embroilment in public controversies and having kith & kins practicing in the same High court could b common reasons for transfers.
  5. The administrative burden of checking professional background data.
  6. Issue of lack of representation of vulnerable groups in the higher judiciary.

Way Forward:

  • CJI consultation cannot be unilateral & consultation views need to be in writing.
  • Instead of selecting a fixed number of judges, the collegium must provide a panel of possible names to the centre to appointment in order of preference & other valid criteria.
  • The appointment procedure needs to ensure independence, reflect diversity, demonstrate professional competence and integrity.
  • As per the Law commission’s suggestion, Parliament should pass a law restoring the primacy of the CJI, while ensuring that the executive plays a role in making judicial appointments.
  • Sc in the Justice Karnan case underlined the need to revisit the process of selection & appointment of judges to the constitutional court.
  • The eligibility criteria to judge the performance & suitability must be formulated objectively & must be made public.

Question: –

Critically evaluate the Collegium system in India.

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