The News Editorial Analysis 9th November 2021  

SC proposes Lakhimpur Kheri investigation by an ex-HC judge

Court seeks U.P. govt. response, says the probe is not going the way it expected

The Supreme Court on Monday asked the Uttar Pradesh Government’s response to a proposal to appoint a retired High Court judge, possibly who served outside the State, to monitor the investigation into the Lakhimpur Kheri murders and violence.

The court highlighted an urgent need to “infuse fairness and impartiality” into the probe.

“The investigation is not going the way we expected… We are here to see that a proper investigation takes place. There is a need to appoint a retired High Court judge to monitor it [investigation] without bias,” Chief Justice of India (CJI) N.V. Ramana, heading a Bench also comprising Justices Surya Kant and Hima Kohli, observed.

Justice Kant said the retired High Court judge could independently monitor the probe till chargesheets were filed. The court refused to entertain suggestions from some lawyers to order the CBI to take over from the State police. “The CBI is not the solution to everything,” Justice Kant remarked.

Ashish Mishra, son of Union Minister of State for Home Affairs, Ajay Mishra, is a prime accused.

The suggestion for a probe by a retired judge came after the court expressed its waning confidence about the fate of the investigation at the hands of the State police.

After more than a month since the Union Minister’s convoy mowed down farmers attending a rally in Lakhimpur Kheri protesting the agricultural laws on October 3, the Special Investigation Team (SIT) has still not got hold of the forensic lab reports. “The lab reports are expected on November 15… We are following up regularly,” senior advocate Harish Salve, for the State government, assured.

The court noted that the SIT had seized only one mobile phone from the 13 accused persons in the case. The movement of the accused at the time of the incident could be tracked from their phones.

Mr. Salve responded, “Some accused said they do not have phones.”

Justice Kohli asked, “Is it your statement then that none of the others have mobile phones?” Mr. Salve said accused at times threw away their phones and claimed they do not have one.

The court pointed out that call detail records of the accused persons’ phones were not specifically listed as part of evidence in the status report. Moreover, videos showing the cars in the convoy running over the farmers were yet to be certified for use as evidence in the trial. Mr. Salve agreed that the videos, once certified, would be a “clinching proof” of the presence of the accused at the crime scene.

‘Post monsoon’ demand led to power deficit: Govt.

Shortfall reversed, says Power Ministry

India’s power deficit this year ‘spiked marginally’ to 1.2% due to the ‘annual post-monsoon pressure’ on output, the Government said in a statement on Monday, asserting that the deficit has been ‘near about wiped out’ in recent years.

“The current year, up till October, it (the power deficit) has been -1.2%; the marginal spike being attributable to the annual post-monsoon pressure on power output. This is also likely to normalize by the end of the year,” the Power Ministry said in a statement, contrasting the figure with deficit levels of up to 16% some years ago.

“India had a massive power deficit of -16.6% in 2007-08. Through the multi-pronged, comprehensive interventions of the government, this deficit is near about wiped out, consistently over the last three years: -.4% in 2020-21, -.7% in 2019-20 and -.8% in 2018-19,” the Ministry said.

The Ministry attributed ‘this transformation from an acutely power deficit country to a situation of demand being met to several schemes introduced by the government over the past six years ‘to address the unhappy situation’.

“The augmentation to the installed power capacity in the country has been 1,55,377 megawatt in last approximately seven years,” it concluded.

New order to give promotion benefit for more SC/ST staff

Karnataka circular solved 20-year-old problem: association

In what is being described as having far reaching consequences for those from the Scheduled Castes, Scheduled Tribes and Backward Classes in bureaucracy, the Karnataka Government has said people from these communities appointed to State jobs on merit basis should not be considered part of the reservation matrix for promotions.

It means more officers and employees from the SC/ST/OBC communities will now have opportunities to get reservation benefits for promotions under the Karnataka Consequential Seniority Act. As per the Karnataka Civil Services Rules, 15% and 3% of promotions in departmental cadres are currently reserved for SCs and STs respectively that are calculated based on their population, and promotions are effected based on a reservation roster. A circular issued by the Department of Personnel and Administrative Reforms clarified that those from SC/ST/ OBC communities appointed directly through merit or have had promotions subsequently based on merit should not be considered part of the reservation matrix.

“They should be considered general candidates and should not be counted in the reservation matrix,” it added. The appointing authorities have been directed to identify the merit candidates in the selection lists announced.

“This circular has solved a 20-year-old problem. In a 1999 order, general merit, general seniority, and backlog were considered based on the current working strength of the cadre. Meritorious candidates were brought under the reserved category, which has now been changed,” said D. Chandrashekaraiah, president of the Karnataka State Government SC/ST Employees’ Association.

A vital cog in Bongaigaon’s response to malnutrition

Project Sampoorna’s success in reducing child malnutrition is a model that can be easily implemented anywhere

‘Let food be thy medicine and medicine be thy food’. This statement is often attributed to Hippocrates, the Father of Medicine, and quite literally sums up Project Sampoorna which was conceptualised and successfully implemented in Bongaigaon district of Assam.

An interlink

The project has resulted in the reduction of malnutrition in children using near zero economic investment. Sampoorna is in tandem with the United Nations’ Sustainable Development Goals and those set by the UN Secretary General António Guterres in the Food Systems Summit (September 2021) including the need to have food systems and social protection that support resilience and food security. Prime Minister Narendra Modi also had identified health and nutrition as priority areas and reiterated the need for a ‘Kuposhan mukt Bharat’ (Malnutrition Free India) while launching the Prime Minister’s Overarching Scheme for Holistic Nourishment (POSHAN Abhiyaan) (National Nutrition Mission) in 2017-18.

It was during Poshan Maah (Nutrition Month) in September 2020 that 2,416 children were identified to be malnourished in the lush green Brahmaputra valley district of Bongaigaon. The National Family Health Survey (NHFS)-5) has documented that the number of children under five who are stunted, wasted, underweight and the number of anaemic women and children in the district are higher than the national average — anaemia being a major determinant of maternal and child health.

These were corroborated by Project Saubhagya that was designed to reduce the maternal mortality rate and infant mortality rate of the district. A real time data sheet is updated by field-level doctors as and when a high risk pregnancy is identified, which is then followed up till safe delivery. The project has yielded encouraging results; maternal deaths for six months (April 1, 2020 to September 30, 2020 compared to April 1, 2021 to September 30, 2021) have fallen from 16 to three and infant deaths from 130 to 63.

Addressing child nutrition

The highest risk factor for high risk pregnancy is anaemia which is usually nutritional. The vicious cycle of a malnourished child growing into an unhealthy adolescent, and then further into an anaemic pregnant young woman giving birth to an asphyxiated low birth weight baby; this baby then facing possible developmental delays, only to grow into a malnourished child; and this child who struggles further for nutrition and appropriate care while the world around her barely makes ends meet is the one that sucks in all possibilities of a healthy society.

This portrays the worst-case scenarios, but truth is indeed stranger than fiction. In order to break out of this vicious cycle, the low-hanging fruit had to be targeted — children’s nutrition.

Malnutrition, patriarchy

Bongaigaon has 1,116 Anganwadis with a total of 63,041 children below five. The massive exercise of plotting their weights and heights in World Health Organization growth charts revealed a total of 2,416 malnourished children; 246 cases of Severe Acute Malnutrition (SAM) and 2,170 instances of Moderate Acute Malnutrition (MAM).

District Nutritional Rehabilitation Centres, or NRCs, usually have up to 20 beds; and a monthly intake of 200 SAM children is not practical. Also, parents of the children who are admitted forgo their daily wages (which to an extent is compensated by the Government) and abandon their farmlands for 10 days. Back home, siblings of the SAM child are not taken care of and may become malnourished. The treated child could also slip back to a SAM state after being discharged and if not cared for.

We needed to innovate now. Based on the success of the community-based COVID-19 management model (Project Mili Juli), we launched Project Sampoorna targeting the mothers of SAM/MAM children, the tagline being ‘Empowered Mothers, Healthy Children’. In addition, we identified the mother of a healthy child of the same Anganwadi Centre (AWC) and paired her with the target mother; they would be ‘Buddy Mothers’ (2,416 pairs). They were usually neighbours and shared similar socio-economic backgrounds. The pairs were given diet charts to indicate the daily food intake of their children; they would have discussions about this on all Tuesdays at the AWC. Local practices related to nutrition would also be discussed.

The major hindrance to the project was patriarchy. Mothers had to be empowered financially for sustained results. Therefore, they were enrolled in Self Help Groups (SHGs) under the National Rural Livelihoods Mission (NRLM). By the end of three months, 74.3% of mothers were enrolled in SHGs; by the end of six months, enrollment went up to 75.6% and by the end of a year, it was 90%. Meanwhile, we arranged for 100 millilitres of milk and an egg on alternate days for all 2,416 children for the first three months, giving time for their mothers to stabilise themselves in the newly found jobs. The large hearted people of Bongaigaon adopted Anganwadis and filled the tiny stomachs with the much needed proteins and their hearts with love.

A sea change

After three months of Project Sampoorna, out of 246 SAM children, 27 (11%) continued to be SAM, 28 (11.4%) improved to MAM and a whooping 189 (76.8%) became normal. Out of 2,170 MAM children, 12 (0.6%) deteriorated to SAM, 132 (6.08%) stayed MAM and an unbelievable 2,015 (92.8%) became normal. The best was yet to come. Milk and eggs were stopped after three months but we continued to follow up to see how our Buddy Mothers Model and Women Empowerment Model were working. Mothers had done what institutions could not do for years. By March 2021, 84.96% of SAM children and 97.3% MAM children were normal; and by September 2021, 92.3% SAM and 98.9% MAM children were normal. Project Sampoorna had stood the test of time. Children who had not improved were checked and treated by doctors under the Rashtriya Bal Swasthya Karyakram (RBSK). UNICEF, IIT Guwahati, Tezpur University and the Social Welfare Department lent their support in periodic course correction.

Project Sampoorna had prevented at least 1,200 children from becoming malnourished over the last year. The National Nutrition Mission and the State government recognised our project in the ‘Innovation Category’. The Chief Minister of Assam, Himanta Biswa Sharma, has written an encouraging message for the project report which will be released soon. The model can easily be implemented anywhere in the world. We believe children everywhere have the right to stay healthy, and hope that the vicious cycle is broken sooner rather than later.

Dr. M.S. Lakshmi Priya, District Collector, Bongaigaon district, Assam, is a medical doctor turned IAS officer (2014 batch), from Kerala. The views expressed are personal

No quota without quantifiable data

There is lack of recent data on the representation of various communities in education and employment

The Madras High Court’s recent verdict of quashing the 10.5% special reservation for Vanniyakula Kshatriyas within the overall 20% quota for Most Backward Classes (MBC) and Denotified Communities (DNC) has again highlighted the importance of quantifiable data as a prerequisite for reservation in education and employment.

Adopted on the last day of the previous State Assembly in February when the All India Anna Dravida Munnetra Kazhagam (AIADMK) was in power, the special quota law, which envisaged 10.5% special reservation for the Vanniyakula Kshatriyas comprising seven sub-castes; 7% for 25 MBCs and 68 DNCs; and 2.5% for 22 MBCs, triggered controversy from the word go. Expectedly, the legislation was challenged before the High Court, which held it unconstitutional for a host of reasons. Even though the Court described the submission that the law was enacted only on the basis of “adequate authenticated data on population” of the MBCs and DNCs enumerated by the second Backward Classes (BC) Commission as the “main thrust” of arguments of Tamil Nadu’s Advocate General, it concluded that “there is no data, much less quantifiable data, available with the State government before the introduction” of the law.

No exhaustive study

It is a fact that no exhaustive study has been done to collect quantifiable data on the representation of different communities in education and employment since the second BC Commission, popularly known after its chairman, J.A. Ambasankar, carried out one during its existence (1982-1985). Even the State BC Commission, in its report of July 2011 to the State government in justification of 69% reservation for BC, MBC/DNCs and Scheduled Castes (SC)/Scheduled Tribes (ST) under the 1994 Act, did not give any community-wise break up of representation in government services. It furnished only the numbers of candidates belonging to the BCs and MBC/DNCs, who were chosen for the State Services and Subordinate Services during 2005-09, quoting the data furnished by the Tamil Nadu Public Services Commission, apart from those from SC/ST and Other Backward Classes selected by the Railway Recruitment Board, Chennai. Even though the mandate given to the BC panel was to come out with its defence of the 69% quota, the Commission could have provided the community-wise break up of recruitments made by the State government.

At least, now, with the High Court pointing to the absence of data as a reason to annul the 10.5% quota law, the State government should commission a study to compile the data on the way the benefits of reservation got distributed among BCs, MBCs and the DNCs. The study can be carried out either by the present BC Commission or by an exclusive panel, as decided by the previous AIADMK government in December 2020. When the existing BC Commission was set up in July 2020, one of the terms of reference was to examine the demand for internal reservation within the reservation provided for MBCs and make a recommendation on the matter. As made clear by the Court, the quantifiable data are required for providing any form of quota in favour of any community because the Constitutional stipulation of adequate representation in the services has to be met along with that of social and educational backwardness for any community to become eligible for reservation in employment.

Internal reservation

The need for internal reservation has been felt for more than one reason. Even in the 1970s and 1980s, two BC Commissions found certain sections of the communities more backward than others. The situation has got compounded in the absence of application of the creamy layer rule in reservation, a concept that is being opposed by political parties including the Dravida Munnetra Kazhagam and the AIADMK. Ironically, the first BC Commission (1969-70), headed by A.N. Sattanathan, talked of having a device for “skimming off periodically” top layers of the communities. The Ambasankar Commission advocated compartmental reservation, by grouping the BCs on the basis of backwardness. It went to the extent of saying that the words, “any backward class of citizens” in Article 16(4) of the Constitution “contemplates [sic] a plurality of backward classes and consequent separate reservation for these classes.”

The concept of quota within quota is nothing new to Tamil Nadu. In March 1989, a new category — Most Backward Classes and De-notified Communities — was carved out of the BCs and given 20% exclusively from the then quantum of 50%. In September 2007, Muslims in the BCs were provided with 3.5% and in January 2009, 3% for Arunthathiyars out of 18% quota for the SCs.

It’s time to engage in ‘lawfare’

India has failed to fully appreciate the usage of international law as a means to advance its national security interests

Military experts, international relations academics, and practitioners like retired diplomats dominate the debates on global security in India. International lawyers are largely absent in these debates despite security issues being placed within the framework of international law. Today, international law covers a wide array of security issues ranging from terrorism to maritime security. Article 1(1) of the UN Charter recognizes the maintenance of “international peace and security” as a principal objective of the UN. Notwithstanding the central role that international law plays in security matters, India has failed to fully appreciate the usage of international law to advance its national security interests.

Several misses

In recent times, several examples demonstrate India’s failure to use an international law-friendly vocabulary to articulate its security interests. First, India struck the terror camps in Pakistan in February 2019, days after a dastardly act of terrorism in Pulwama was carried out by a Pakistan-based terror outfit. In justifying the use of force, India did not invoke the right to self-defence since Pakistan was unable or unwilling to act against the terrorist groups operating from its soil; rather, it relied on a contested doctrine of ‘non-military pre-emptive action’.

Second, after the Pulwama attack, India decided to suspend the most favoured nation (MFN) status of Pakistan. Under international law contained in the General Agreements on Tariffs and Trade, countries can deviate from their MFN obligations on grounds of national security. Instead of suspending the MFN obligation towards Pakistan along these lines, India used Section 8A(1) of the Customs Tariff Act, 1975, to increase customs duties on all Pakistani products to 200%. The notification on this decision did not even mention ‘national security’.

Third, India wishes to deport the Rohingya refugees who, it argues, pose a security threat. However, India’s argument to justify this deportation is that it is not a signatory to the Refugee Convention. This is a weak argument since India is bound by the principle of non-refoulment (a customary international law principle that prohibits a country from returning refugees to countries where they face a clear threat of persecution on account of race, religion, nationality, political opinion, among others). National security is one of the exceptions to the non-refoulment principle in international refugee law. If India wishes to deport the Rohingya, it should develop a case on these lines showing how they constitute a national security threat.

Fourth, to put pressure on the Taliban regime to serve India’s interest, India has rarely used international law. For instance, India could have made a case for the South Asian Association for Regional Cooperation (SAARC) using its implied powers under international law to temporarily suspend Afghanistan from SAARC’s membership.

That being said, there have been some instances where India has ably used international law for its national security objectives, such as in the Kulbhushan Jadhav case when it dragged Pakistan to the International Court of Justice and also in developing international law to counter terrorism.

At the margins

There are several reasons for international law remaining at the margins of foreign policymaking in India. First, there is marginal involvement of international lawyers in foreign policymaking. B.S. Chimni, a leading Indian international lawyer, argues, “the Legal and Treaties Division of the Ministry of External Affairs, which advises the government on international law matters, is both understaffed and largely ignored on policy matters”. Moreover, an international law expert has far greater incentive to join the government as a generalist diplomat than as an international lawyer. Second, apart from the External Affairs Ministry, there are several other Ministries like Commerce and Finance that also deal with different facets of international law. They have negligible expertise in international law. Third, there has been systemic neglect of the study of international law. Institutions created to undertake cutting-edge research in this discipline have institutionalised mediocrity and university centres mandated to develop the stream suffer from uninspiring leadership and systemic apathy. Fourth, many of the outstanding international law scholars that India has produced prefer to converse with domain experts only. Thus, they have failed in popularising international law among the larger public. If India wishes to emerge as a global power, it has to make use of ‘lawfare’ i.e., use law as a weapon of national security. To mainstream international law in foreign policymaking, India should invest massively in building its capacity on international law.

Prabhash Ranjan is Professor and Vice Dean, Jindal Global Law School, OP Jindal Global University. Views are personal

‘Inclusive maritime region must’

Defence Secretary warns against unprecedented expansion of Navies

Stating that a free, open and inclusive maritime region, where legitimate interests of all nations must be respected, is imperative to achieving high growth, Defence Secretary Ajay Kumar said on Monday that India hoped that its maritime neighbours understood, and were sensitive to, India’s “legitimate maritime security concerns”.

“Unprecedented expansion” of conventional Navies could start a “new genre” of arms race, he said at the third edition of the Goa Maritime Conclave hosted by the Navy,

“While we talk of non-traditional threats, we cannot ignore the impact of expansion at an unprecedented speed of conventional Navies in the Pacific. We are also witnessing enhancement of certain maritime presence and passages in our region, which may not be always be innocent. The negative effects of such rapid expansion are felt far beyond the Pacific,” Mr. Kumar said without naming any country.

China has not only increased its forays into the Indian Ocean Regionbut has also set up a base in Djibouti and is expanding its Navy at an unprecedented rate.

The Navy chiefs and heads of maritime agencies of Bangladesh, Comoros, Indonesia, Madagascar, Malaysia, the Maldives, Mauritius, Myanmar, the Seychelles, Singapore, Sri Lanka and Thailand are taking part in the conclave. The theme for this year’s edition is “Maritime security and emerging non-traditional threats: a case for proactive role for IOR Navies”.

Addressing the conclave, Foreign Secretary Harsh V. Shringla highlighted the joint coastal radar surveillance systems in coordination with countries in the region and other cooperative efforts. “We have worked and are willing to work with our partners on improving Exclusive Economic Zones (EEZ) surveillance,” he said.

India has supplied equipment, vessels and aircraft to friends like Vietnam, Mozambique, the Maldives, Mauritius, Seychelles, Comoros, Bangladesh and Myanmar, he said. “We are willing to work with partners in upgrading maritime hardware and software.”

Navy chief Admiral Karambir Singh laid emphasis on common efforts on information exchange for maritime domain awareness in the region and capacity building. India’s efforts are spearheaded by the Information Fusion Centre for IOR (IFC-IOR) located in Gurugram which also has several international liaison officers.

Mr. Kumar said that for a secure and prosperous future, it was important to adhere to international rules and laws and understand each other’s interests and sensitivities and act accordingly.

Disaster relief

While seas open the doors for economic progress, Mr. Kumar said, the region is one of the most disaster-prone areas causing enormous destruction. Listing out several instances where the Navy was the first responder in case of natural disasters, Mr. Kumar said the Navy would continue to work for Humanitarian Assistance and Disaster Relief as first responder and net security provider.

Mr. Kumar said India was in the process of making a Standard Operating Procedure for dealing with disasters in the Asia-Pacific which would be shared with all nations concerned. “We hope this will benefit our collective preparedness to deal with these calamities.”

The News Editorial Analysis 8th November 2021

The News Editorial Analysis 9th November 2021