The HINDU Notes 27th August 2019

PM rejects scope for third party mediation in Kashmir

Trump: Discussed issue with Modi — India, Pakistan can resolve it on their own

•Prime Minister Narendra Modi on Monday categorically rejected any scope for third party mediation between India and Pakistan on Kashmir, saying the two countries can discuss and resolve all issues bilaterally and “we don’t want to trouble any third country.”

•Mr. Modi made these remarks while interacting with the media alongside U.S. President Donald Trump, who ahead of his meeting with the Prime Minister had said that he will discuss the Kashmir issue with him on the sidelines of the G7 summit in the French town of Biarritz.

•Mr. Trump in the recent past has offered mediation between India and Pakistan on the Kashmir issue.

•“All the issues between India and Pakistan are bilateral in nature, and we don’t want to trouble any third country. We can discuss and resolve these issues bilaterally,” Mr. Modi said.

•He said India and Pakistan were together before 1947 and he was confident that the two neighbours can discuss their problems and solve them.

•“When I had called Prime Minister Khan after the elections, I told him that Pakistan has to fight against poverty, India has to also fight against it. Pakistan has to fight against illiteracy and disease, and India has to also fight against them…I told him we should work together for the welfare of our people,” he said.

•On his part, Mr. Trump said he and Mr. Modi spoke about Kashmir “at great length” on Sunday night and he feels that both India and Pakistan can resolve it on their own.

•“We spoke about Kashmir, the Prime Minister really feels he has it [situation] under control. They speak with Pakistan and I’m sure that they will be able to do something that will be very good,” Mr. Trump said.

•“I have very good relationship with both the gentlemen [Modi and Khan] and I’m here. I think they can do it [resolve the issue] themselves,” he added.

•“We are talking about trade, we’re talking about military and many different things. We had some great discussions, we were together for dinner & I learned a lot about India,” the U.S. President said. Mr. Modi also thanked Mr. Trump for congratulating him after his recent election victory.

•Their meeting came against the backdrop of the Indian government revoking the special status to Jammu and Kashmir and bifurcating the State into two Union Territories on August 5.

•Tensions between India and Pakistan spiked after India abrogated provisions of Article 370 of the Constitution, evoking strong reactions from Pakistan.

•India has categorically told the international community that the scrapping of Article 370 was an internal matter and also advised Pakistan to accept the reality.

•Briefing reporters after the talks between Mr. Modi and Mr. Trump, Foreign Secretary Vijay Gokhale said the two leaders had a “very warm, very positive meeting” which lasted 40 minutes.

•This was their third interaction since Prime Minister Modi was re-elected in May this year for a second five-year term.

•Asked about the discussion on the Kashmir issue during the talks, the Foreign Secretary said there was “no discussion” on it during the bilateral meeting.

•To another question, Mr. Gokhale said India had not taken any steps to harm regional stability. “Normalcy is returning to Jammu and Kashmir,” he said, adding that certain restrictions will remain in place in the State to maintain law and order.

•“Their meeting principally focussed on trade and energy,” Mr. Gokhale said.

Plea in Supreme Court seeks online RTI portals in States

Only Maharashtra and Delhi have set up systems for e-filing

•The Supreme Court on Monday asked the Centre and 25 States to respond to a writ petition for a direction to establish Right to Information (RTI) web portals across all States to enable citizens, especially those living abroad, to file RTI applications online.

•A Bench led by Justice N.V. Ramana issued notice on the petition filed by the Pravasi Legal Cell, represented by senior advocate Sanjay Hegde, saying that none of the States except Delhi and Maharashtra, had set up RTI portals.

•The Central government established an online RTI portal whereby any Indian citizen, including Non-Residential Indians (NRIs), can apply for information under the RTI Act with the desired Ministry or Department under the Central government. An applicant can also pay the requisite fee through online payment in this portal and submit the RTI application, the petition said.

•The Centre had also requested, via a letter dated December 13, 2013, the various State governments to explore the feasibility of implementing online RTI portals. It had even offered to provide technical support for this purpose through the National Informatics Centre (NIC) to the States.

•“However, only the States of Maharashtra and Delhi have established their respective online portals for obtaining information from the departments of their respective governments,” the petition pointed out.

•It said that a person seeking information under the RTI Act of 2005 from any State department, is compelled to make a physical application. This has become difficult for NRIs.

•“The provision of an online web portal will help the Indian citizens, including the Non-Resident Indians by speedy dissemination of information requested, which in turn would only help in achieving the aim of the RTI laws of bringing transparency in administration,” the petition said.

•It reminded the court of Section 7(1) of the 2005 ACT which provides for disclosure of information if it concerns the life or liberty of a person. Such dissemination of the information would be easier sought through an online application, the petition said.

G7 Summit: signs of hope as Donald Trump says U.S.-China trade talks are on

‘Beijing called last night… said let’s get back to the table’

•There were signs of a thaw in trade-war tensions between China and the U.S. on Monday as President Donald Trump said delegations would “very shortly” resume talks and Beijing’s top negotiator called for “calm”.

•The two sides have been embroiled in a bruising year-long dispute that has seen tariffs slapped on billions of dollars worth of goods in two-way trade, with the row escalating over the weekend.

•But just three days after the announcement of further mutual tariff hikes, Mr. Trump told reporters at the G7 summit in France’s Biarritz that there had been two “very, very good” phone calls from “high-level” Chinese officials.

•“China called last night… said let’s get back to the table. So we’ll be getting back to the table,” he said on Monday, adding that “they want to make a deal”.

•He later said talks with China were “more meaningful than at any time” because the United States was doing well while China was “losing millions of jobs”.

•Mr. Trump’s comments followed moves by China’s most powerful trade negotiator, Vice Premier Liu He, to take the edge off the soaring tensions.

•“We are willing to solve the problem through consultation and cooperation with a calm attitude,” said Mr. Liu, according to a report by Chinese news outlet Caixin.

•“We firmly oppose the escalation of the trade war,” he said, speaking at the opening ceremony of the 2019 Smart China Expo in the southwestern city of Chongqing.

•Mr. Trump later said “calm” was “very good word to use. It’s not a word I use often.”

•The U.S. president also insisted the calls were at “the highest levels”. “The vice premier is low level? I don’t think so,” he said, seemingly referring to Mr. Liu.

•U.S. Trade Representative Robert Lighthizer and Treasury Secretary Steven Mnuchin travelled to Shanghai in July for a round of trade talks, where discussions were described as “constructive” but ended with no announcements.

Time to strike the gavel

The judiciary needs to dispel the perception that its standing as the guardian of constitutional rights is faltering

•The biggest blow to the people of India was delivered by the Supreme Court of India on April 28, 1976. five-member Constitution Bench (the Chief Justice of India, A.N. Ray, and Justices H.R. Khanna, M. Hameedullah Beg, Y.V. Chandrachud and P.N. Bhagwati) delivered its judgment in the Additional District Magistrate, … vs. S.S. Shukla Etc. Etc. The scars it inflicted on the Constitution, constitutional morality and constitutionalism are deep.

Emergency formulation

•This was the judgment that allowed the suspension of the writ of habeas corpus during Emergency.

•Some of the points made were: “In period of public danger of apprehension, the protective law which gives every man security and confidence in times of tranquillity has to give way to interest of the State.” (CJI A.N. Ray); Enforceability, as an attribute of a legal right, and the power of the judicial organs of the State to enforce the right, are exclusively for the State, as the legal instrument of Society, to confer or take away in the legally authorised manner.” (Justice Beg); “Personal liberty is but one of the Fundamental Rights… therefore the suspension of the right to enforce the right conferred by Article 21 means and implies the suspension of the right to file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21.” (Justice Y.V. Chandrachud); “The Constitution… if it says that even if a person is detained otherwise than in accordance with the law, he shall not be entitled to enforce his right of personal liberty, whilst a Presidential order under Article 359, clause (1) specifying Article 21 is in force I have to give effect to it.” (Justice Bhagwati).

•This was an anti-constitutional and anti-people decision. But in the true spirit of Rabindranath Tagore’s words, Justice Khanna held: “If they answer not to your call, walk alone.

•“But Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. The right to life and personal liberty is the most precious right of human beings in civilised societies….”

•Justice Khanna said, “The cases before us raise questions of utmost importance and gravity, questions which impinge not only upon the scope of the different constitutional provisions, but have impact also upon the basic, values affecting life, liberty and the rule of law… What is at stake is the rule of law. If it could be the boast of a great English judge that the air of England is too pure for a slave to breathe, cannot we also say that this sacred land shall not suffer an eclipse of the rule of law and that the Constitution and Indian laws do not permit life and liberty to be at the mercy of absolute power of the executive, a power against which there can be no redress in courts of law? Even if it chooses to act contrary to law or in an arbitrary and capricious manner… The question is whether the laws speaking through the authority of the courts shall be absolutely silenced and rendered mute because of such threat.”

Rights in Kashmir

•That was during the Emergency. Today, there is no Emergency, yet the constitutional and basic rights of scores have been suspended in Jammu and Kashmir (J&K). Worse, the Supreme Court has virtually taken away their constitutional remedy to enforce those rights. Regrettably, the court has treated habeas corpus petitions in a most casual manner by justifying negation of the rule of law. Two episodes — though not directly connected — have left us searching for answers as to functioning of the court.

•While adjourning for two weeks, a writ petition challenging the imposition of restrictions in Jammu and Kashmir, following the abrogation of Article 370, a bench of the top court, on August 12, 2019, merely accepted the pleas of the Attorney General on behalf of Centre to the effect that, “we have to ensure that law and order situation in Jammu and Kashmir is maintained and that it will take a few days to return to normalcy.” It further observed, “the situation is such that nobody knows what exactly is happening there. Some time should be given for bringing normalcy”.

•In other words, the top court — the custodian of the right to life and liberty — handed over its duty to the Central government. Subsequently, on August 16, another court bench hearing writ petitions on lifting the communication ban said, “let us give it a bit of time” and adjourned these matters to an unspecified date. During the hearing, the Central government urged that “things will settle down in next few days” and that “these are security related issues that are best left to the government and armed forces”.

•The court’s handling of these cases is a harsh reminder of the ADM Jabalpur case. More than a million people have been locked down in one of the biggest clampdowns by the Indian armed forces; and all under the cover of Section 144 of Cr.P.C. Article 21 is about life and liberty, and all that the Supreme Court has done is to defer these crucial matters without taking the government to task. In the first instance, the state failed “to ensure normalcy” from the day it abrogated Article 370; it has now tried to buy more time from the top court to do so. The “situation is such that nobody knows what exactly is happening there”, but that is precisely why it is the duty to court to ascertain true facts. It cannot shy away from doing justice in the name of “security” and “law and order”.

•It is not suggested here that the security of the nation can be compromised; nor can one argue that law and order ought not to controlled. But preservation of both is the duty of the state. If it intends to do so by taking away fundamental and basic human rights then one can infer that the state has failed in its duty.

An individual’s rights

•Equally, the court’s approach to protecting the rights of individuals is disturbing as seen in the case of the former Union Minister P. Chidambaram. On August 14, 2017, the Supreme Court entertained an SLP filed by the Central Bureau of Investigation (CBI) on the same day, included in the supplementary list as the last item before the Court of the CJI. The order of the Madras High Court appealed against was stayed. On February 22, 2018, the Supreme Court entertained the CBI’s interlocutory application on being mentioned and listed it for the next day. In both these cases, the respondent was Karti P. Chidambaram. Contrary to these actions, on August 21, 2019, it shied away from entertaining a petition by Mr. P. Chidambaram on super technical grounds. On August 16, a court bench entertained a petition filed by the Serious Fraud Investigation Office, on the same date and stayed the order of the Madras High Court. The reluctance to even list the matter on the same day is disappointing.

•It is not suggested for a moment that Mr. Chidambaram should not face the inquiry. But in a case where the retiring Judge of the High Court delivers the judgment after several months and in the afternoon (3 p.m.), virtually making it impossible for the petitioner to get relief from Supreme Court and which simultaneously fails to extend the interim protection which was operating for this period, is a case where the top court should have intervened. In its actions, the top court that made the right to anticipatory bail sacrosanct (Gurbaksh Singh Sibbia Etc vs State Of Punjab, 1980) has now made it infructuous. Does the judiciary have to be reminded of the fundamental principle, actus curiae neminem gravabit (no person should be prejudiced by an act of Court)?

•The judiciary needs to dispel the perception that it is no longer the pillar created to protect constitutional and legal rights. In any failure, its stature and status as the “bulwark of the rule of law and the democracy” will be compromised.