The Hindu Editorial Analysis | 3rd Oct ’19

Table of Contents

U.S. warns partners of sanctions risk
Tells allies to forgo deals with Russia
On a day when External Affairs Minister S. Jaishankar said he was “reasonably convinced” of persuading the U.S. to accept India’s decision on the purchase of the Russian S-400 missile defence system, U.S. officials warned that any such purchase might risk sanctions.
“We urge all of our allies and partners to forgo transactions with Russia that risk triggering sanctions under the Countering America’s Adversaries Through Sanctions Act (CAATSA),” a State Department spokesperson told The Hindu through email, hours after Mr. Jaishankar’s comments on Tuesday.
India agreed to purchase the surface-to-air missile system from Russia in 2018 for about $5.2 billion, risking sanctions under the CAATSA. Sanctions could kick in when the first payment for the equipment is made, unless the U.S. President grants a waiver. ‘Waivers not automatic’
U.S. government officials have repeatedly said, in the Indian context, that countries should not assume that waivers are automatic.
Mr. Jaishankar, who is on a visit to Washington, following the United Nations General Assembly high-level week in New York, has held or will hold meetings with U.S. government officials, including Secretary of State Michael Pompeo and Secretary of Defense Mark Esper.
The State Department, however, said Mr. Pompeo had not made any decision regarding India’s transactions, when asked about possible sanctions. “The Secretary has not made any determination regarding the significance of any transaction involving India. We cannot prejudge whether a specific transaction would result in sanctions,” a spokesperson told The Hindu.

Countering Iran’s Destabilizing Activities Act of 2017

This bill directs the President to impose sanctions against: (1) Iran’s ballistic missile or weapons of mass destruction programs, (2) the sale or transfer to Iran of military equipment or the provision of related technical or financial assistance, and (3) Iran’s Islamic Revolutionary Guard Corps and affiliated foreign persons.
The President may impose sanctions against persons responsible for violations of internationally recognized human rights committed against individuals in Iran.
The President may temporarily waive the imposition or continuation of sanctions under specified circumstances.

Countering Russian Influence in Europe and Eurasia Act of 2017

The President must submit for congressional review certain proposed actions to terminate or waive sanctions with respect to the Russian Federation.
Specified executive order sanctions against Russia shall remain in effect.
The President may waive specified cyber- and Ukraine-related sanctions.
The bill provides sanctions for activities concerning: (1) cyber security, (2) crude oil projects, (3) financial institutions, (4) corruption, (5) human rights abuses, (6) evasion of sanctions, (7) transactions with Russian defense or intelligence sectors, (8) export pipelines, (9) privatization of state-owned assets by government officials, and (10) arms transfers to Syria.
The Department of State shall work with the government of Ukraine to increase Ukraine’s energy security.
The bill: (1) directs the Department of the Treasury to develop a national strategy for combating the financing of terrorism, and (2) includes the Secretary of the Treasury on the National Security Council.

Korean Interdiction and Modernization of Sanctions Act

The bill modifies and increases the President’s authority to impose sanctions on persons in violation of certain United Nations Security Council resolutions regarding North Korea.
U.S. financial institutions shall not establish or maintain correspondent accounts used by foreign financial institutions to provide indirect financial services to North Korea.
A foreign government that provides to or receives from North Korea a defense article or service is prohibited from receiving certain types of U.S. foreign assistance.
The bill provides sanctions against: (1) North Korean cargo and shipping, (2) goods produced in whole or part by North Korean convict or forced labor, and (3) foreign persons that employ North Korean forced laborers.
The State Department shall submit a determination regarding whether North Korea meets the criteria for designation as a state sponsor of terrorism. Regarding Russia, Section 241 of the Act required that “not later than 180 days after the date of the enactment of this Act, the Secretary of the Treasury, in consultation with the Director of National Intelligence and the Secretary of State” submit to Congress a detailed report — with the option of containing a classified annex — that would include “identification of the most significant senior foreign political figures and oligarchs in the Russian Federation, as determined by their closeness to the Russian regime and their net worth” as well as an assessment of the relationship between such individuals and ″President Vladimir Putin or other members of the Russian ruling elite″. The section also called for an assessment of the “leadership structures and beneficial ownership” of Russian parastatal entities
Ministry of Earth Sciences (MoES), Government of India had launched ‘National Monsoon Mission’ (NMM) with a vision to develop a state-of-the-art dynamical prediction system for monsoon rainfall on different time scales. MoES has bestowed the responsibility of execution and coordination of this mission to the Indian Institute of Tropical Meteorology (IITM), Pune. For this national mission, IITM is collaborating with NCEP (USA), MoES organisations and various academic institutions/organizations under NMM. Climate Forecast System (CFS) of NCEP, USA has been identified as the basic modelling system for the above purpose, as it is one of the best among the currently available coupled models. However, it has a moderate skill for retrospective forecast (hindcast) of seasonal monsoon rainfall and this skill needs to be improved to make the forecasts more useful. Thus, there is an urgent need to develop an Indian model based on CFS coupled model with an improved hindcast skill so that it can be transferred to the India Meteorological Department for operational forecasting. With this objective, To accomplish this task, MoES/IITM invited proposals from national and international scientists/organizations.
Base Models to be used
The Ministry of Earth Sciences (MoES) has considered to use the following numerical models : (i) The American model called “Climate Forecast System” (CFS) developed by National Centres for Environmental Prediction (NCEP), NOAA National Weather Service, USA. CFS is a coupled oceanatmosphere modeling system that combine data from ocean, atmosphere and land for providing long range forecasting (seasonal prediction of Indian Monsoon); [ Model developments on CFS will be implemented by IITM, with atmospheric initial conditions from NCMRWF and Ocean initial conditions from INCOIS] and (ii) The Unified Model (UM), developed by the United Kingdom Meteorological Office (UKMO), UK. This model will be utilized for short to medium range prediction [and the Model developments on UKMO will be implemented by NCMRWF, in association with IMD.]
The 2009 manual points to different indices that could be used in early determination of drought
Aridity Anomaly Index (AAI) / Rainfall deviation Index
Standardized Precipitation Index (SPI)
Palmer Drought Severity Index (PDSI)
Crop Moisture Index (CMI)
Surface Water Supply Index (SWSI)
Normalized Difference Vegetation Index (NDVI)
Moisture Availability Index (MAI)
Effective Drought Index (EDI)
Bangladesh Prime Minister Sheikh Hasina will make her first official visit to India from October 3-6, post the general elections in Bangladesh (December 2018) and India (May 2019).
She will address the World Economic Forum’s India Economic Summit followed by the bilateral visit. India and Bangladesh today enjoy one of the best periods of their relationship, with positive development in the areas of diplomatic, political, economic and security relations.

Despite gains, the issues

The current Bangladesh government has uprooted security threats and acts of insurgency against India and today, the India-Bangladesh border is one of India’s most secured. The signing of the Land Boundary Agreement in 2015 was a milestone, where the two neighbours amicably resolved a long-outstanding issue.
Bilateral trade was a little over $9 billion in FY 2017-18 and Bangladeshi exports increased by 42.91%, reaching $1.25 billion in FY 2018-2019. Removal of nontariff barriers will help Bangladeshi exports such as harmonizing the standards for goods accepted by India. In 2018, in addition to the 660 MW of power imported by Bangladesh, Indian export of electricity increased by another 500 MW. A 1,600 MW power station with a dedicated transmission system is being developed to boost power trade.
Land routes have gained popularity over air travel, and are preferred by 85.6% of Bangladeshis visiting India. Train services on the Dhaka-Kolkata and KolkataKhulna are doing well, while a third, on the Agartala-Akhaura route, is under construction. Five additional bus services were introduced in 2018; this March, the first ever Dhaka-Kolkata cruise ship was launched. Bangladeshi tourists accounted for 21.6% of the total percentage of tourists visiting India in 2018 (83.7% tourists and 10.28% medical patients). Today, Bangladesh contributes 50% of India’s health tourism revenue.
A few major outstanding issues still remain, with the most pressing being the Teesta Water Sharing Agreement. West Bengal Chief Minister Mamata Banerjee’s refusal to endorse watersharing terms agreed upon by Prime Minister Modi in 2015 has resulted in the current impasse. A lack of water has affected 100,000 hectares of land, with contamination affecting the soil; the increased cost of pesticides and irrigation has made farming less profitable. The National Register of Citizens (NRC) has left out 1.9 million Assamese from the list with a group labelled as “illegal immigrants from Bangladesh” living in Assam post-1971. Bangladesh remains firm in its stance that no migrants travelled to Assam illegally during the 1971 war of independence and that the controversial NRC risks hurting relations.
Border killings have decreased. India’s Border Security Force (BSF) claims that most of the firing is in self-defence in tackling cattle trafficking. However, since the ban by India on cattle export, cattle trade has fallen from 23 lakh in 2013 to 75,000 till the end of May this year — which makes the argument unconvincing. International rules of engagement entail that military action must be “proportional to provocation”, which makes such killings a serious violation of human rights. It must not be forgotten that in 2018, the BSF DG had said: “Relations between India and Bangladesh and the two border guarding forces are at their best right now.”
Since 2010, India has approved three lines of credit to Bangladesh of $7.362 billion to finance development projects. Due to bureaucratic red tape, just $442 million has been disbursed till December 2018. While Bangladesh has been slow in implementation, India’s requirement of the disbursement process to be approved by India’s Exim Bank has not helped either. During Sheikh Hasina’s visit to Delhi in 2017, two defence pacts were signed; in 2018, India extended a credit line of $500 million to purchase armaments; two memoranda of understanding were also signed for cooperation between the naval forces.

Subject of Rohingya
The Rohingya issue and India’s remarks in 2017 on the issue have been upsetting for Bangladesh which has been facing the challenge of providing shelter to more than a million Rohingya refugees fleeing persecution by one of the world’s most brutal military regimes. The recent visit to Dhaka by India’s External Affairs Minister S. Jaishankar (August 19-21), saw a marked departure in India’s position; he had said then: “We agreed that safe, speedy and sustainable return of displaced persons (Rohingyas) is in the national interest of all three countries – Bangladesh, Myanmar, and India.” However, it is China that is mediating when, given its geographical proximity, it is India which is ideally positioned to play a positive role in regional leadership.
India-Bangladesh relations have matured in the last decade with development in many areas of cooperation. In a neighbourhood where distrust and cynicism prevail over friendship and hope, the relationship between the two countries has given hope for optimism. But the sooner existing challenges are resolved, the better it is. On the sidelines of the 74th UN General Assembly late last month, Mr. Modi assured Sheikh Hasina that she would not need to worry about the NRC and water-sharing as bilateral relations are very good. It is now time to walk the talk.
The shared colonial legacy, history and socio-cultural bonds demand that the political leadership of the two countries inject momentum into India-Bangladesh relations. Sheikh Hasina’s trip to India will hopefully help relations graduate to the next level of strengthening the three Cs: cooperation, coordination, and consolidation.
October 2 was not only Mahatma Gandhi’s 150th birth anniversary, but also the fifth, and perhaps final, anniversary of the Swachh Bharat Mission. Speaking in Gujarat, Prime Minister Narendra Modi declared India “open defecation-free”.
But is rural India really open defecation-free? The Swachh Bharat Mission website claims with some caveats that the country has achieved 100% coverage of latrine ownership. If this was the definition of being open defecation-free, then, again with some caveats, India can be declared so.

Study findings

Ten months ago, our team revisited families we had interviewed in a 2014 survey in Bihar, Uttar Pradesh, Rajasthan and Madhya Pradesh. We asked about the defecation behaviour of nearly 10,000 people. Between 2014 and the end of 2018, latrine ownership in the region had increased by 34 percentage points. Yet, even in States that had already been declared open defecation-free, the actual coverage was far below 100%. Although the percentage of people defecating in the open declined by 26 percentage points, close to half still reported to be relieving themselves in the open. And sadly, the programme barely managed to bring any change in the behaviour of latrine owners. Like in 2014, about a quarter of people who own a functional latrine continued to defecate in the open. Overall, the study found that 44% of people in these four States defecated in the open. These facts are unlikely to have radically changed in only 10 months.
Some may call Mr. Modi’s declaration a political overstatement and move on to celebrate the reduction in open defecation. But doing so will leave us with an unanswered question: Will India have a sanitation policy that will address the remaining who openly defecate? For those who care about India’s abandoned toilets and stunted health outcomes, this is an important question.
In the past five years, the Indian government has built a 100 million toilets. This implies that it constructed 38 toilets every minute that had passed since the Swachh Bharat Mission was launched. With a country as large as India, this is a big achievement. But another important question to ask here is: how was this achieved?

The other half of the story

Hard-working government officials going around convincing people to build and use a latrine might be half the story, but the remaining half is alarming. From talking to 156 government officials, we learned that many rural Indians were threatened with or even denied their legal rights, such as PDS ration, for not building a latrine. Officials resorted to threats of fines and jail terms to intimidate people in some places.
“The tehsildar came [to our village] once. He told the patwari that he should cancel the Kisan Credit Cards of people who did not build toilets,” said a village secretary in M.P. In Rajasthan, a ration dealer told us that the government had asked him to “stop people’s ration until they had a niralo ghar [house with a toilet] stamp on their ration card”.
With unrealistic targets pushed down from the top, “Swachh Bharat Mission beneficiaries” were not alone in facing coercion. Government officials at every level – whether elected, appointed, or contracted – faced immense pressure and threats from their bosses. A block coordinator in M.P. said, “We have to motivate people but we also have construction targets. We have to build 18,000 toilets before October 2 [2018]. So, we have put motivation aside and we focus on the construction target. I am a contract worker. They tell us that if we don’t get 700 toilets built, we will be fired.”
Coercion in some form or the other was ubiquitous in almost all the places we visited. More than half of the families we talked to reported the use of coercive activities in their villages to get people to build or use latrines; one in every four families told us that they have heard of government benefits being withdrawn for not having a latrine; and Dalits and Adivasis were at least twice as likely as others to report that they or their family members had faced coercion.
The spirit of bidding farewell to open defecation as a gift to Gandhi deserves accolades. But we must not forget that there are still miles to go. India needs to have a sanitation policy that focuses on reducing open defecation. And most importantly, it should follow Gandhi’s path of ahimsa and compassion.
Let us say we were creating the law on criminal process from scratch, for a just utopia. The law would need to empower police to arrest persons who are probable, not merely possible, suspects. Inbuilt in such a power to arrest must be a restriction against arbitrarily arresting people who are not probable crime suspects. Such a restriction would have to be founded in the right of individuals against arbitrary intrusions into their lives by the state and law enforcement, recognized in Puttaswamy v. Union of India (2017).
Departing from the view of privacy as a bundle of rights, the Supreme Court held that privacy is essential for protecting personal liberty as it allows us to define ourselves and our relations to others.
But it is not enough to merely recognize a right of individuals, and a corresponding restriction on the power of the police. The restriction must also serve to deter the police from intruding willy-nilly into the private lives of individuals.
On balance, criminal process in a just utopia ought to incentivize honouring the individual’s right to privacy as autonomy while discharging law enforcement duties. After all, one is presumed innocent until proven guilty.

Cognisable offences

How close is India to being this utopia? Activist Shehla Rashid, on FIRs accusing her of sedition and promoting enmity between religious groups, had to recently secure protection against arrest from a court. This is because both the named offences are “cognisable” — that is, an officer can take cognizance of and arrest a suspect without seeking a court’s warrant to do so, if she has “reason to believe” that the person has committed the offence and is satisfied that the arrest is necessary on certain enumerated bases. Within 24 hours of the arrest, the officer must have any further detention of the arrested person ratified by a judicial magistrate.
How would officers make the decision on whether to arrest someone? They must first weigh the probability of a person having engaged in the criminalized conduct. This is a factual question. Next, they must assess if the conduct in question fits the definition of the offence, to decide if the person ought to be arrested. This too is a factual question.
However, this question is comparatively easier to answer when the offence criminalizes conduct for constituting the harm. For instance, the offence of murder constitutes the harm of loss of life — the police officer must decide, on facts, whether the loss of life resulted from the intentional conduct of the accused. But it is a harder question to answer in case of offences such as those in the FIR against Ms. Rashid, as officers must answer whether the suspect’s conduct will result in or cause harm as a downstream effect.
Needless to say, this prediction can only be accurate and free of error if officers are clairvoyant!
Whether the offence criminalizes conduct for constituting harm or causing harm as a downstream effect, there is no restriction on the powers of the police that deters arrests based on an error in answering these factual questions. In the case of offences mentioned in Ms. Rashid’s example, factual errors can result from exuberant policing, driven by subjective convictions on what might cause hatred, contempt or excite disaffection against the government or promote enmity between religious groups. In offences like these, the line between exuberant policing and a reasonable belief that the arrested person engaged in criminalized conduct can be hazy. Therefore, it is unclear what parameters can be employed by the judicial magistrate in deciding whether to remand the accused person to further custody for investigating the acts of the accused.
An arrest based on such an error would unconstitutionally curtail not only the arrested person’s freedom to engage in speech and conduct, but also her liberty against arbitrary arrest.
Further queering the pitch is the requirement on the police to apply judgments of the Supreme Court modifying definitions of offences to bring them in line with the Constitution. For instance, the definition of sedition was read down in Kedarnath Singh v. Bihar (1962) to encompass only speech or conduct that can “incite violence” or “involves the intention or tendency to create disorder”.
Thus, an officer examining a sedition FIR needs to accurately understand and apply Kedarnath Singh, before taking cognizance of the offence. The Court restated this requirement in September 2016, in Common Cause v. Union. The question is whether such an essentially mixed question of fact and law can be left to the police force, an essentially executive authority trained to undertake investigative decisions.
Non-cognizable offences
On the other hand, a non-cognizable offence would need officers to approach a court for a warrant before they can arrest a suspect. Why some offences can lead to arrests only upon judicial intervention for issuance of warrant is unclear. One rationale proposed by some courts is that grave and serious offences are cognizable.
However, the Malimath Committee noted in 2003 that many serious offences like public servants disobeying the law to cause injury to any person; bribery during election; buying or disposing of any person as a slave; cheating; mischief; forgery; making or using documents resembling currency notes; and criminal intimidation were non-cognizable.
Contradicting the gravity-of-offence rationale is the 177th Law Commission Report which states that cognizable offences are those that require immediate arrest. However, lawyer and scholar Abhinav Sekhri notes that Part B of the Schedule comprising cognizable offences in the Code of Criminal Procedure (CrPC) carries several offences that do not necessitate immediate arrest, such as making unauthorized constructions, repairs and modifications to one’s house under a Maharashtra town planning law. This raises questions about the rationale behind selectively requiring judicial scrutiny of some arrests, while permitting full police-discretion over other arrests.
The CrPC was written in 1973. Ever since, multiple judgments of the apex court such as Joginder Kumar (1994), DK Basu (1997) as well as Law Commission Reports (154th, 177th) critiqued the wide powers of arrest for cognizable offences. This led to the 2009 amendment which restricted the power to arrest, to persons against whom “a reasonable complaint” or “reasonable suspicion” exists, or “credible information” is received, of having “committed a cognizable offence.” Even so, the CrPC neither deters arbitrary arrests, nor comprises incentives for carrying out arrests consistent with the individual liberty and autonomy of individuals. What then happens to the right to privacy and autonomy of a person who is arrested on a charge that does not meet the tests laid down by the Court — such as in Kedarnath Singh or, worse, on a charge that is proved to be empty?
A code that does not compel the police to constantly be accountable to individual liberty and the Constitution is merely a police procedure manual. After Puttaswamy’s emphatic recognition of the right to privacy as autonomy, inherent in individual dignity, it is imperative that we rethink the powers to arrest for cognizable offences against the state and against public tranquility.
For the CrPC to truly realize criminal justice, we might even profitably reimagine the very concept of a cognizable offence as we presently know it.

A sound review

Supreme Court’s order on anti-atrocities law is a caution against entering legislative domain
After last year’s amendments aimed at nullifying the effect of a Supreme Court judgment that was seen as diluting the law against atrocities on Scheduled Castes and Scheduled Tribes, the apex court’s decision recalling the earlier verdict may not appear very significant. However, the latest order by a three-judge Bench on the Centre’s petition seeking a review is more than a mere academic exercise. Its sound reasoning and sympathetic reconsideration have fortified the legislative measure to restore the law on atrocities committed on Dalits as originally conceived by Parliament.
The March 2018 decision laid down three new rules as safeguards against the Act’s possible misuse: (1)that the bar on anticipatory bail under Section 18 need not prevent courts from granting advance bail; (2)that a person can be arrested only if the “appointing authority” (in the case of a public servant) or the SP (in the case of others) approves such arrest; (3)and that there should be a preliminary enquiry into all complaints.
It caused an uproar among Dalits, and a nation-wide protest in August last year turned violent in some places. There was political clamour for Parliament’s intervention to restore the anti-atrocities law to its original rigour. That the Bench declined to stay its own order when a review was sought spurred the government into action.
There was widespread criticism then that the BJP’s perceived espousal of upper caste interests and its weak submissions in court had led to the verdict. It was even argued that the Centre was under political compulsion to undo the perception that the interests of the SCs and STs were in danger. The court’s re-examination, on the contrary, is anchored in sound principles. It first underscores that special laws for the protection of SC and ST communities flow from social realities, the discrimination they still face and the circumstances that preclude them from mustering the courage to lodge a complaint in the first place. The court assails the assumption that SC/ST members are more likely to give false complaints than the general population (as evidenced by the fact that there is no preliminary enquiry or prior sanction for arrest envisaged for other complaints). In other words, the additional “safeguards” against the alleged abuse of law by Dalits is another form of discrimination, the court has pointed out. Further, it rejects the idea of treating Dalits as people prone to lodging false complaints. The directions for getting an authority’s sanction for arrest or holding a preliminary enquiry for this class of cases alone are extra-statutory, and clearly amount to the judiciary engaging in legislation. The review is a timely reminder that the top court’s power to pass any order required to uphold justice cannot be used to give directives contrary to existing laws or to supplant them altogether.

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