Piecemeal extensions to ED, CBI heads are a setback to their independence
The Supreme Court’s verdict upholding statutory amendments made in 2021 to allow multiple extensions of service to heads of investigative agencies is a setback to the cause of protecting their institutional independence. While the part of the judgment quashing the two one-year extensions given to the Director of Enforcement, S.K. Mishra, may be welcomed, the rest of it is a free pass to the government to undermine the autonomy of these agencies. The Court has asked Mr. Mishra to step down on July 31. In 2021, it had directed the government not to grant any extension to him beyond November that year. It has now ruled that even though Parliament can remove the basis for any judgment through legislation, it cannot nullify a court direction. Mr. Mishra was appointed for a two-year term in 2018, but in 2020, the original appointment was retrospectively amended to make it a three-year tenure. He was given two annual extensions in 2021 and 2022, despite crossing the age of superannuation. The government ignored the Court’s earlier observation that such extension should be given to those who have attained superannuation only in “rare and exceptional cases”. However, the larger import of the latest judgment is that it endorses the changes enabling annual extensions to the CBI and ED Directors until they complete five years in that office.
The heads of the CBI and ED have an assured term of two years regardless of superannuation, and the introduction of a power to extend it to five years means an officer may get up to three annual extensions. As the petitioners who challenged the extension given to Mr. Mishra, as well as the Court-appointed amicus curiae, argued, piecemeal extensions undermine the independence of the office, and encourage a carrot-and-stick policy to make Directors toe the government’s line. The Court has rejected, without much justification, their contention that the 2021 changes to the Central Vigilance Commission Act, the Delhi Special Police Establishment Act and the Fundamental Rules go against the spirit of earlier judgments that mandated fixed tenures to the CBI and ED heads only to insulate them from extraneous pressures. The finding that the amendments do not violate any fundamental rights is quite surprising, as allowing the government to have Directors who can pick and choose what cases to investigate based on political instructions certainly offends the rights of citizens to equal treatment and impartial investigation. At a time when there is a cloud of suspicion over the misuse of government agencies against political opponents, the Court’s endorsement of a tenure extension system designed to undermine their independence is not conducive to the rule of law.
Quiet diplomacy could ease South China Sea tensions
The Foreign Ministers of India and the Philippines met at the fifth meeting of the Philippines-India Joint Commission on Bilateral Cooperation, in New Delhi, on June 29. Building on the shared interests of the two maritime Asian republics and nearly 75 years of diplomatic history, the External Affairs Minister of India, S. Jaishankar, and the Secretary for Foreign Affairs of the Philippines, Enrique Manalo, outlined the path for a strengthened bilateral partnership between Manila and Delhi in the 21st century.
The South China Sea issue
The decision to open the resident defence attaché office in Manila; boosting cooperation between the Coast Guards of the two countries; acquisition of naval assets by Manila under a concessional line of credit from Delhi; expansion of training and joint exercises on maritime security and disaster responses, and commencing a maritime dialogue are some examples of the evolving strength of this nautical partnership. However, the most notable development was the agreement on regional and multilateral issues, particularly on maritime highways such as the South China Sea. While India reiterated its consistent position on adhering to international law, including the United Nations Convention on the Law of the Sea (UNCLOS), its unambiguous call to respect the 2016 Arbitral Award on the South China Sea is a departure from India’s earlier position. From ‘noted’ to ‘adherence to the 2016 Arbitral Award’ is a candid recognition of its legitimacy.
The Philippines had submitted a case of arbitration to the Permanent Court of Arbitration (PCA) in order to settle disputes with China. Despite China’s formal withdrawal from the arbitration on February 19, 2013, the proceedings continued as scheduled under UNCLOS guidelines. The UNCLOS’ Annex VII stipulates: “The absence of a party or the failure of a party to present its case shall not be a bar to the proceedings.” The PCA finally released the Award on July 12, 2016. The arbitration took into account maritime rights, the status of particular marine features, historical rights, and the legitimacy of particular Chinese actions in the South China Sea, that Manila claimed to be illegal. The tribunal’s decision is “final and binding” in accordance with UNCLOS Article 296 and Article 11 of Annex VII.
The PCA denied China’s assertion that it had historical rights in the South China Sea, and the unanimous decision was unexpectedly in the Philippines’ favour. It further stated that any prior claims to resources situated inside the “nine-dash line” were unfounded. The tribunal determined that development and land reclamation had fundamentally changed the reefs in contravention of UNCLOS commitments. China has “inflicted irreparable harm to the maritime environment” in addition to “destroying evidence of the natural condition of features in the SCS [South China Sea]”.
The Tribunal also found that “China has violated the sovereign rights of the Philippines in its Exclusive Economic Zone (EEZ) by (a) interfering with Philippines’ fishing and petroleum exploration, (b) constructing artificial islands, and (c) failing to stop Chinese fishermen from fishing in the zone”. It added that China had reduced the traditional fishing rights of Filipino fishermen and that by physically obstructing Philippine vessels, Beijing had raised the “serious risk of collision” at sea. Finally, it determined that China had no legal basis for asserting historic rights to resources located within the sea areas under the Tribunal’s jurisdiction.
It is essential to remember that the Tribunal “did not rule that it was unlawful in principle for China to undertake construction activities on the disputed islands that it occupies”, and that “there is nothing in the decision which would make it unlawful for China to construct military installations on the islands it occupies, with the exception of Mischief Reef”. But the Tribunal emphasised that the dispute is driven by their fundamentally different interpretations of separate rights under UNCLOS in the South China Sea. What should be done in response to a China that is assertive and disobeying international law?
A case for dialogue
The South China Sea is a crucial maritime gateway and junction for shipping between the Pacific and Indian Oceans. Any confrontation in the South China Sea, one of the world’s most vital oceans in terms of geopolitics, economy, and strategy, will be a danger to regional and global security. As free and stable marine commons are crucial to global trade and economy, India and many other nations have an interest in safeguarding the water lanes that pass through the region.
Despite the fact that the PCA declared its decision, the reality on the ground has not altered, making it practically impossible to carry out the decision. By reiterating the need for a peaceful conflict resolution that fully respects legal and diplomatic channels and abides by the ruling, India has sent a strong message that the region wants peace and respect for international law.
There is a realisation that the South China Sea problem requires a political framework, which can only be created through dialogue. Leaders of the Association of Southeast Asian Nations (ASEAN) should try to find a political solution through “quiet diplomacy”, as the potential for resolving this issue through legal methods is very low. The creation of a “political framework” and progress towards a legally binding “code of conduct” falls more on the shoulders of ASEAN’s leaders. If the ASEAN nations want to convey a crucial political message to China, greater understanding is needed among themselves.
The views expressed are personal
Leaders of the Association of Southeast Asian Nations need greater understanding among themselves if they want to convey a crucial political message to China
Loot, intransigence, and the darkening of a colonial blot
The recent news that the Netherlands will return 484 valuable artefacts it looted from Indonesia and Sri Lanka during the colonial period — it includes the fabled “Lombok treasure” of precious stones, gold and silver jewellery to Indonesia and the exquisitely-decorated bronze-and-gilt cannon of Kandy to Sri Lanka — once again puts the focus on an issue that will not go away. Should colonial countries continue to hold on to cultural artefacts and precious objects that were stolen during the period of imperial domination, or acknowledge their misappropriation and return them to their original homelands?
The British have stubbornly refused for decades to return the so-called Elgin Marbles, a collection of classical Greek marble sculptures purloined by Lord Elgin from the Parthenon temple in Athens, or the Rosetta Stone taken from Egypt in 1802. But they had shown more generosity in repatriating some of the Benin Bronzes (looted by British forces in 1897) to Nigeria. Yet, when it comes to their extensive treasure trove of Indian artefacts, from the Kohinoor diamond to the sculptures from the Amaravati stupa, they dig in their heels, fearful of starting a haemorrhage that, in the words of former Prime Minister David Cameron, would soon leave the British Museum empty.
We cannot blame the British for everything that is wrong in our country today; nor should we see the return of such looted items as a panacea to cure all the ills and wrongs of colonialism. One can even accept that there is a statute of limitations on colonial wrongdoings, but there is none on human memory, especially living memory, for as I have pointed out in my book, An Era of Darkness, there are still millions of Indians alive today who remember the iniquities of the British Empire in India. History belongs in the past; but understanding it, and doing whatever we can about it, is the duty of the present.
A trauma that lingers
Equally, we must understand that the return of stolen property is not a substitute for the trauma and the horrors caused by colonialism, because the agony suffered can never truly be removed through such belated restitution. The same holds for financial reparations, since the value of the human lives lost because of colonial indifference or brutality can never be accurately computed. The return of cultural artefacts is rather a moral obligation which the West owes to its colonies, just as reparations can be morally justified as the wealth and the economic success of these former colonial powers were built on the broken backs of their colonies. The return of cultural items offers a semblance of justice as well as expiates a legal and moral obligation which cannot and should not be ignored.
The return of some of the treasures looted from India in the course of colonialism is also a much easier solution than financial reparations would be. The money exacted by the British from India in taxes and exploitation has already been spent, and cannot realistically be reclaimed. But individual pieces of statuary sitting in British museums could be, if for nothing else than their symbolic value. After all, if looted Nazi-era art can be (and now is being) returned to their rightful owners in various western countries, why is the principle any different for looted colonial treasures?
Flaunting the Kohinoor on the Queen Mother’s crown in the Tower of London is a powerful reminder of the injustices perpetrated by the former imperial power. Until it is returned — at least as a symbolic gesture of expiation — it will remain evidence of the loot, plunder and misappropriation that colonialism was really all about. Perhaps that is the best argument for leaving the Kohinoor where it emphatically does not belong — in British hands.
Need for true atonement
Of course, the process should not end with a few pieces of statuary or jewellery alone. I have argued for some time that the question of retrospective justice for colonialism is not answered by financial reparations alone, but by moral atonement.
This, in my view, should take three forms aside from the (still improbable) return of looted colonial-era artefacts: teaching unvarnished British colonial history in schools in the United Kingdom, setting up with British tax money a museum to the horrors and iniquities of colonialism in the Imperial capital. And, above all, expressing an apology to the victims of colonialism.
When Willy Brandt was Chancellor of Germany, he sank to his knees at the Warsaw Ghetto in 1970 to apologise to Polish Jews for the Holocaust. There were hardly any Jews left in Poland, and Brandt, who as a Socialist was persecuted by the Nazis, was completely innocent of the crimes for which he was apologising. But in doing so — with his historic ‘Kniefall von Warschau’ (Warsaw Genuflection), he was recognising the moral responsibility of the German people, whom he led as Chancellor. That is precisely why, when I released my book, Inglorious Empire, in the United Kingdom, I called for atonement, rather than financial or other compensation for India.
What Britain could do
While no British government of 2023 bears a shred of the responsibility for the horrors of colonialism, as a symbol of the nation that once allowed it to happen, the British government could atone for the past sins of the nation. That is also what Canada’s Prime Minister Justin Trudeau did in 2016 when he apologised on behalf of Canada for the actions of his country’s authorities a century earlier in denying permission for the Indian immigrants on the Komagata Maru to land in Vancouver, thereby sending most of them to their deaths. Mr. Trudeau’s Willy Brandt moment needs to find its British echo.
It is unlikely to happen. Britain continues to persist in its intransigence. The U.K. is still well behind the Dutch on the issue of the restitution of colonial artefacts. It shelters behind de-accessioning laws that prevent anything currently in a British Museum from being returned to the place it was looted from. Since pretty much every museum in London is a chor bazaar, the British do stand to lose a lot, from the Elgin Marbles in the British Museum to the mechanical tiger devouring a British redcoat (commissioned by Tipu Sultan) in the Victoria & Albert Museum. It is safer to say no to everything than to return one item and unwittingly prise open the floodgates.
But while they say no, they are not prepared to say sorry. An apology — an act of genuine contrition at, ideally, Jallianwala Bagh, like Mr. Trudeau’s over Komagata Maru — might work best as a significant gesture of atonement. And building a Museum of Colonialism would show a determination, in the metropolitan country, to learn the lessons of Empire — to teach British schoolchildren what sources of loot, pillage and profit built their homeland, just as German children are shepherded to concentration camps to see the awful reality of what their forefathers did.
If all this is done, then true atonement — of the purely moral kind, involving a serious consideration of historical responsibility rather than mere admission of guilt or payment of money — might be achieved. Is that really too much to hope for?
Retrospective justice for colonialism is not answered by financial reparations and the return of artefacts alone, as there needs to be moral atonement too.
Is it possible to have partial app bans?
The story so far:
Last week, the Telecom Regulatory Authority of India (TRAI) sought inputs on whether it would be possible to have “selective” app bans instead of internet shutdowns, in order to reduce the impact that a wholesale communications lockdown can entail.
Does India have a history of Internet shutdowns?
Internet shutdowns are imposed in States and districts across India from time to time in order to prevent the rapid spread of provocative content during communally charged periods. The Indian government considers Internet shutdowns a legitimate tool of maintaining law and order.
Shutdowns can be prolonged, with access to education, work, banking, and information strained. As such, the government has sought to stay the course on imposing restrictions but not at the scale of a shutdown. In Jammu and Kashmir as well as in Manipur, authorities and courts have gradually loosened long-term restrictions by allowing wired internet connections and limited wireless internet access.
How would the TRAI move work?
The approach suggested by TRAI would require telecom operators and messaging app firms like WhatsApp to cooperate with each other and stop access to services during a shutdown. The telecom regulator has sought inputs on licensing messaging apps in India, which may require firms to be subjected to surveillance and blocking requirements.
Has the TRAI considered app regulation before?
In 2015 and 2018, the TRAI had held consultations on regulating messaging apps, a process that led to wide-ranging protections for net neutrality — the concept that all internet traffic should be treated equally. Telecom operators had then called for regulation because they argued that messaging apps provide the same service without going through the stringent security and surveillance regulations that telecom operators go through. Telcos were also wary of their revenues being undercut by online calls and messages, which were cheaper than calling and SMS rates then. However, from 2016 onwards, the Department of Telecommunication (DoT) and the TRAI have rejected this argument, holding that telcos cannot discriminate between categories of data used by consumers.
Since then, regulating messaging apps has become more a matter of security and policing. Seeking a deterrent against communal misinformation and provocative content spreading online, the Ministry of Electronics and Information Technology added a requirement of ‘traceability’ to the IT Rules, 2021, wherein one can find the original sender of a forwarded message. However, civil society groups and tech firms said that such requirements were impossible without breaking end-to-end encryption.
What about VPNs?
It is possible to block websites and certain apps by ordering telecom operators to do so. However, Virtual Private Networks (VPNs) make these blocks trivial to bypass. VPNs tunnel a user’s internet traffic through another server. While these tools are mostly used for completely innocuous purposes, the government has been showing a growing distrust of VPNs. This is because VPNs are often encrypted, leaving the government with little visibility into what goes on in users’ connections.
VPN firms usually route data through servers located in another country, and frequently cycle the IP addresses these servers use to evade detection and blocking. Some VPN firms promise that they do not maintain logs of their customers’ usage. Since the government has not publicly stated what procedural safeguards it exercises when intercepting web traffic of users, these services are used by both privacy-conscious users and, the government argues, terrorists and cybercriminals. When the Indian Computer Emergency Response Team (CERT-in) published directions in 2022 requiring VPN firms to retain records of users from India, most large VPN providers stopped offering servers physically located in India. However, these firms continued serving users in India, allowing people to connect to foreign servers through an encrypted connection and access blocked sites.
Can VPNs be blocked?
Blocking VPNs is not straightforward, as companies operating them tend to frequently change the IP addresses associated with their servers. While VPN services’ websites may be blocked, the installation files can be found elsewhere online. The Manipur High Court was informed as much by telecom operators, who said that blocking VPNs was technically unfeasible.
However, Internet rights activists say that blocking VPNs would be a damaging move for online privacy. “VPNs … help secure digital rights under the Constitution of India specially for journalists, whistle-blowers and activists,” the Internet Freedom Foundation wrote in 2021. “The encrypted nature of information transfer over VPNs allows them to not only secure confidential information but also to safeguard their own identity, thus protecting them from surveillance and censorship.”
Last week, the Telecom Regulatory Authority of India (TRAI) sought inputs on whether it would be possible to have “selective” app bans instead of internet shutdowns.
Internet shutdowns are imposed in States and districts across India from time to time in order to prevent the rapid spread of provocative content during communally charged periods.
The approach suggested by TRAI would require telecom operators and messaging app firms like WhatsApp to cooperate with each other and stop access to services during a shutdown.
What is the National Research Foundation?
How is the body going to be funded? Is the funding too less when compared to the nation’s GDP? How is the NRF planning to make research and development easier?
The story so far:
The Union Cabinet has approved the introduction of the National Research Foundation (NRF) Bill in Parliament, placing once again the debate on science and technology funding in the spotlight.
What is the NRF?
Setting up the NRF was one of the key recommendations of the National Education Policy 2020.
The NRF intends to act as a coordinating agency between researchers, various government bodies and industry, thus bringing industry into the mainstream of research.
In addition to providing research grants to individuals, the NRF plans to seed, grow and facilitate research in India’s universities, especially State universities, by funding research infrastructure and researchers.
How will it be funded?
The NRF will operate with a budget of ₹50,000 crore for five years, of which 28% (₹14,000 crore) will be the government’s share, and the remaining 72% (₹36,000 crore) will come from the private sector. The NRF draft proposes the government’s share to increase eventually to ₹20,000 crore per year. Out of the government’s share, ₹4,000 crore will be used from the existing Science and Engineering Research Board’s budget, which will be subsumed under the NRF. Therefore, the government has earmarked an additional 10,000 crore over the next five years for the NRF.
However, this increase in the nation’s gross domestic expenditure on research and development (GERD) seems too meagre, (less than 2% of GERD) especially if one compares the GDP and the comparative spending in other big economies, such as the U.S. and China. As per the last available statistics (2017-18), India’s GERD was ₹1,13,825 crore. While India’s GDP was 7.6 and 5.1 times smaller than that of the U.S and China respectively, India’s GERD was nearly 24 times less than both these countries during the same period. And in the last five years, that gap has further widened.
How can the NRF facilitate the “ease of doing science”?
First, the time between applying for a research grant and receiving the money must be minimal, preferably within six months. Although the NRF draft mentions that the peer-review process will be completed within six months, releasing funds may take time, pending financial clearance. Second, all the paperwork must be digitally processed without sending stacks of papers in hard copies to the NRF. Third, all finance-related queries, paperwork, approval, and acceptance need to be between the NRF and the finance department of the university/research institution keeping the scientist free to focus on research. Fourth, the NRF needs explicit spending guidelines away from the General Financial Rules (GFR) and the government’s e-Marketplace (GeM) usage. Scientific research needs independent guidelines for spending money, which provides flexibility while making scientists accountable. Finally, the release of money needs to be timely. Although the NRF draft mentions timely disbursal of funds, a mechanism needs to be in place to facilitate and implement this.
While the participation of the private industry in the NRF is an important and welcome step, it is unclear how the government will raise ₹36,000 crore from the industry. Although the NRF describes a legislative route to facilitate this, a more detailed plan and establishing mechanisms akin to escrow accounts will reassure the scientific community.
The proposed NRF is largely modelled after the National Science Foundation of the U.S. It borrows some of the best practices from the German, U.K., Swiss, Norwegian, South Korean, and Singapore science agencies. Even if the NRF draft discusses critical thinking, creativity, and bringing innovation to the forefront, it is unclear how the NRF will transparently seed, fund and coordinate research across institutions. The success of NRF will lie in how the government sets rules and implements the same, different from what already exists.
The writer is a professor at JNU, New Delhi.
The Union Cabinet has approved the introduction of the National Research Foundation (NRF) Bill in Parliament.
The NRF will operate with a budget of ₹50,000 crore for five years, of which 28% (₹14,000 crore) will be the government’s share, and the remaining 72% (₹36,000 crore) will come from the private sector.
The NRF intends to act as a coordinating agency between researchers, various government bodies and industry, thus bringing industry into the mainstream of research.