CURRENT AFFAIRS – 26/05/2023-

Bulgarian writer Georgi Gospodinov and translator Angela Rodel won the International Booker Prize on Tuesday for Time Shelter, a darkly comic novel about the dangerous appeal of nostalgia.

The book beat five other finalists to the prize, which recognises fiction from around the world that has been translated into English.

Time Shelter imagines a clinic that recreates the past, with each floor reproducing a different decade. Intended as a way to help people with dementia unlock their memories, it soon becomes a magnet for people eager to escape the modern world.

If India’s insurance regulator’s plans fructify, households across the country could soon be able to get an affordable single policy that covers health, life, property and accident, get their claims settled within hours, and even secure value-added services at the time of buying a policy.

In an ambitious bid to expand the poor insurance penetration in the country, the Insurance Regulatory and Development Authority (IRDA) is devising a new affordable bundled product to give citizens protection against multiple risks, and seeking to expedite claim settlements by linking death registries onto a common industry platform.

These initiatives are part of a broader overhaul — including legislative amendments to attract more investments through differentiated licences for niche players similar to the banking sector — with an eye on making insurance “available, affordable and accessible” to all citizens with a “gram panchayat- to district- to State-level’ approach.

The regulator believes these changes could double the number of jobs in the sector to 1.2 crore.

IRDA chief Debasish Panda said on Thursday that they are striving to create an “UPI-like moment” in insurance through a plan worked out with general and life insurance firms that he termed “Bima Trinity”.

China is continuing to expand the network of model villages, or Xiaokang (moderately prosperous) villages, opposite the Line of Actual Control (LAC) in the Middle and Eastern sectors, according to official sources. In addition, they say, new posts are coming up six or seven km from the LAC in the Middle Sector, and, in some areas, the frequency of patrolling has gone up significantly.

Opposite Barahoti, the Chinese are building villages at a rapid pace, sometimes 300 to 400 houses within 90 to 100 days, a source said. People’s Liberation Army patrols have been observed every 15 days or so as against once in a season earlier, the source said. Small patrols are being seen in the Mana, Neeti and Thangla areas. “Construction of a likely border settlement village was seen northwest of Tholing; a military complex is under construction close by. Superstructures of buildings in both locations are complete,” another source said.

In Arunachal Pradesh, opposite the Kameng area, two villages have come up in Cuna country consisting of 41 dwelling units and there are about 200 inhabitants from the Menba ethnic community, the source said. There is a military complex adjacent to the village consisting of multi-storey buildings secured by a perimeter wall with CCTVs and watch towers, the source added.

As reported earlier, a large number of Xiaokang villages are under construction all along the LAC, including at the Chumbi valley facing the strategically crucial Siliguri corridor.

While China continues to expand infrastructure, India too has almost reached parity in terms of roads and other infrastructure in the Middle Sector. There has also been major induction of new technology by the Indian Army along the LAC to augment surveillance and capacity.

Since the beginning of the stand-off with China in eastern Ladakh in April 2020, there has been a build-up of forces by the People’s Liberation Army (PLA) and transgressions in other areas along the LAC. In August 2021, over 100 Chinese soldiers had transgressed four or five km into Indian territory at Barahoti in Uttarakhand and returned after few hours.

Chinese transgressions in the Middle Sector is not new but the number of PLA troops coming in is increasing. The 3,488-km-long LAC is divided into the Western (Ladakh), Middle (Himachal Pradesh and Uttarakhand) and Eastern (Sikkim and Arunachal Pradesh) sectors.

The Indian Army has, in the last three years, signed a series of agreements for high-technology equipment, which is currently in the process of being inducted in the forward areas, official sources said. New autonomous vehicles will soon replace animal transport for transporting rations and utilities to soldiers in forward locations and snow scooters, laser dazzlers and new generation sniper rifles have also been inducted.

In another development, official sources said that the PLA has deployed an Unmanned Aerial Vehicle (UAV) or helicopter drone in the Middle sector, which was spotted across the LAC.

In May 2020, Chinese state media had reported that China’s first UAV meant for high-altitude areas had made its maiden flight and could be deployed along the country’s borders with India. According to Global Times, the AR-500C unmanned plateau helicopter meant for surveillance can take off at an altitude of 5,000 metres, has a ceiling of 6,700 metres, an endurance of five hours and a maximum take-off weight of 500 kg.

On May 19, 2023, the President of India exercised legislative power under Article 123 of the Constitution, during the period Parliament was in recess, to promulgate “The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023” (Ordinance). The ordinance negates a Constitution Bench judgment of the Supreme Court of India, which was delivered on May 11, that brought “services” under the Government of National Capital Territory of Delhi (NCTD).

There are two issues here that require analysis: first, the scope of the Court’s verdict. Second, the constitutionality of the ordinance.

While interpreting Article 239AA(3)(a), the Court ruled, inter alia, that these were the points: The Legislative Assembly of the NCTD has competence over entries in List II and List III, except for expressly excluded entries of List II (entries 1, 2, 18 are excluded); the executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has power to legislate; the Union of India has executive power only over three entries in List II over which the NCTD does not have legislative competence (entries 1, 2, 18).

Thus, essentially, the Court interpreted that out of the 66 entries in List II (the State list), while the executive power of the Government of NCTD covers 63 entries, that of the Union of India is restricted to the remaining three:: public order (entry 1), police (entry 2) and land (entry 18).

Consequently, executive power over “services” (entry 41) can be exercised exclusively by the Government of the NCTD. This interpretation of the Court is consistent with the wordings in Article 239AA(3)(a). But, this interpretation was negated by the Union of India, acting through its Council of Ministers under Article 74, by triggering extraordinary legislative power of the President under Article 123 in the promulgation of an ordinance on May 19.

What the ordinance did was to read/insert entry 41 of List II (State list) into Article 239AA(3)(a), thereby expanding the scope of excepted matter from three (1, 2, 18) to four (1, 2, 18, 41).

This could not have been done without amending Article 239AA(3)(a) of the Constitution. The power conferred on Parliament under Article 239AA(3)(b) is to make fresh laws — not to amend Article 239AA(3)(a) of the Constitution.

Similarly, power conferred on Parliament under Article 239AA(7)(a) is to make laws for giving effect to or supplementing the provisions contained in various clauses of Article 239AA and for all matters incidental or consequential thereto. Such a power cannot be pressed into action to amend Article 239AA(3)(a) of the Constitution. Significantly, Article 239AA(7)(b) stipulates that Parliament’s law making under Article 239AA(7)(a) shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. No such clause has been stipulated in Article 239AA(3)(a). Therefore, altering the scope of Article 239AA(3)(a) requires constitutional amendment under Article 368; there is not an iota of doubt.

Consequently, the ordinance promulgated under Article 123 of the Constitution to expand the scope of excepted matters in Article 239AA(3)(a) is void ab initio and is liable to be struck down for bypassing constitutional amendment. It amounts to a colourable exercise of power. Article 123 is no substitute for Article 368 (amendment of the Constitution) in Part XX.

Besides, when a Constitution Bench (five judges) of the Supreme Court declares/interprets the law (Article 239AA(3)(a)), the same is binding on all courts and authorities in India in terms of Articles 141 and 144, respectively. Could Articles 141 and 144 have been negated by Article 123 without a constitutional amendment?

Articles 123, 141, 144 are in Part V (The Union) of the Constitution. None has a non-obstante clause. The aid and advice of the Union Council of Ministers to the President under Article 74 could not have overridden Article 144. The basis of the Court judgment is Article 239AA(3)(a). To alter this basis, a constitutional amendment is necessary.

The Union of India’s decision to prefer review (Article 137) and promulgate an ordinance (Article 123) simultaneously is ill-conceived; if the ordinance is challenged, the Union of India is unlikely to succeed through either route to wrest power of “services” in Delhi.

In the landmark seven-judge Bench verdict of the Supreme Court in the matter of Krishna Kumar Singh vs State of Bihar (2017) 2 SCC 136, the Court held that the satisfaction of the President under Article 123 is not immune from judicial scrutiny; powers under Article 123 is not a parallel source of law making or an independent legislative authority.

It was further held that the Court is empowered to look into the relevance of material placed before the President, but not its sufficiency or adequacy.

The ordinance is likely to be struck down since it expands excepted matters in Article 239AA(3)(a). Parliament alone can do this under Article 368.

In December last year, while speaking at the U.S. Congress, Ukraine President Volodymyr Zelenskyy compared the battle for Bakhmut to the Battle of Saratoga, in which the American revolutionaries clinched a decisive victory against the British in October 1777. “… the fight for Bakhmut will change the trajectory of our war for independence and our freedom,” he said. Five months later, Bakhmut is not in Ukraine’s hands. After 10 months of fighting, Russia’s Ministry of Defence announced last week the city’s capture in the eastern Donetsk region, its first major territorial gain since January when it took neighbouring Soledar. Ukraine claims that its troops continue to defend a small area of Bakhmut and is advancing on its flanks, but has admitted that the eastern city “is effectively in Russian hands, for now”. For Vladimir Putin’s Russia, which invaded Ukraine on February 24, 2022, it was a much-needed victory after a series of setbacks late last year when Russian troops were beaten back by the Ukrainians from the Kharkiv Oblast in the northeast and Kherson city in the south. The Russians are already in control of the whole of Luhansk and getting Bakhmut would potentially allow them to target other major urban centres in Donetsk such as Kramatorsk and Sloviansk. For Ukraine, which was preparing for a major counteroffensive, the loss of Bakhmut is a setback, but not the end of the road.

Russia, whose initial thrust into Ukraine failed to meet its objectives, seems to be learning from its battlefield mistakes as its invasion has turned into a war of attrition. According to a recent report by the London-based Royal United Services Institute, Russia’s battlefield tactics, coordination, supplies, electronic warfare and air defence have improved. In Bakhmut, Russia suffered huge losses but the fighting was done by Wagner, a private military corporation, which provided much of the regular Russian troops, including the 300,000 freshly mobilised soldiers, time to build fortifications along the over 1,000-km frontline and undergo training. On the other side, Ukraine was supposed to launch its counteroffensive at the beginning of Spring, and the delay points to its battlefield problems, which were partially revealed by leaked U.S. intelligence documents earlier this year. But Ukrainian troops now have some of the most advanced weapons, thanks to the West. In recent months, Ukraine has also carried out attacks inside Russia, using drones and medium-range fire or saboteurs, bringing the war home for Mr. Putin. Now, with advanced weaponry, Ukraine is betting on its counteroffensive and ability to create disruptions inside Russia. To recover from its setbacks in Soledar and Bakhmut, Ukraine will have to regain territories quickly, while Russia tries to capitalise on the momentum created by taking Bakhmut. As both sides are determined to continue the war, there is no hope for peace or talks on the horizon.

The story so far:

Last week former Supreme Court judge Justice M.R. Shah refused to recuse himself from hearing a plea by former Indian Police Service (IPS) officer Sanjiv Bhatt to submit additional evidence to back his Gujarat High Court appeal against his conviction in a 1990 custodial death case. Mr. Bhatt contended that there was a reasonable apprehension of bias as Justice Shah, as a High Court judge, passed strictures against him while hearing his plea linked to the same FIR. However, Justice Shah dismissed the plea as an attempt to indulge in ‘bench hunting’. Similarly, a few weeks ago, the Chief Justice of India D.Y Chandrachud rejected an application seeking his recusal from hearing petitions seeking legal recognition of same-sex marriages.

Whenever there is a potential conflict of interest, a judge can withdraw from a case to prevent the perception that the judge was biased while deciding a case. This conflict of interest can arise in many ways — from holding shares in a litigant company to having a prior or personal association with a party. Another common reason is when an appeal is filed in the Supreme Court against a High Court judgment delivered by the concerned judge before his elevation. The practice stems from the cardinal principle of due process of law — nemo judex in sua causa, that is, no person shall be a judge in his own case. Another principle guiding judicial recusals is ‘justice must not only be done but must also be seen to be done’ propounded in 1924 in Rex v. Sussex Justices by the then Lord Chief Justice of England.

By taking the oath of office, judges promise to perform their duties, ‘without fear or favour, affection or ill-will’, in accordance with the Third Schedule of the Constitution. Furthermore, the Restatement of the Values of Judicial Life adopted by the Supreme Court forbids a judge from deciding a case involving any entity where he holds pecuniary interest unless the concerned parties clarify that they have no objections.

There are two kinds of recusals — an automatic recusal where a judge himself withdraws from the case, or when a party raises a plea for recusal highlighting the possibility of bias or personal interest of the judge in the case.

The decision to recuse rests solely on the conscience and discretion of the judge and no party can compel a judge to withdraw from a case. While judges have recused themselves even if they do not see a conflict but only because such apprehension was cast, there are also several instances where judges have refused to withdraw from a case. In 2019, while hearing a plea on the plight of inmates in Assam’s detention centres, the then CJI Ranjan Gogoi was asked to recuse himself for some adverse oral remarks. Mr. Gogoi refused, saying that the plea had ‘enormous potential to damage the institution’. If a judge recuses himself, the case is listed before the Chief Justice for allotment to an alternate Bench. India has no codified rules governing recusals, although several Supreme Court judgments have dealt with the issue.

Since there are no statutory rules governing the process, it is often left to the judges themselves to record reasons for recusals. Some judges specify oral reasons in open court while others issue a written order recording the reasons. In other cases, the reasons are speculative.

More often than not, the reasons behind a recusal are not disclosed leading to a diatribe against judicial transparency especially when mass recusals occur in sensitive cases. For instance, last year, five judges of the Bombay High Court recused themselves from the Bhima Koregaon case. Similarly, the recusal of Supreme Court judge Justice Bela M. Trivedi earlier this year from hearing Bilkis Bano’s plea led to widespread speculation since no reasons were specified. The recusal was largely attributed to Justice Trivedi’s deputation as Law Secretary to the Gujarat government from 2004 to 2006.

In the 2015 Supreme Court judgment striking down the National Judicial Appointments Commission (NJAC), a claim for Justice J.S. Khehar’s recusal was made on the ground that he was a member of the Collegium. In his concurring opinion, Justice Kurien Joseph wrote that it was the judge’s ‘constitutional duty’ to be ‘transparent and accountable’ and therefore, reasons must be indicated for recusal. This will negate any room for attributing any motive for the recusal, he said. On the contrary, Justice Madan Lokur was of the opinion that citing reasons for recusal is unwarranted, expressing apprehension about a scenario where a party may challenge the reasoning before a court and it would set aside the recusal, ruling that the reason was frivolous. He, however, highlighted the need for ‘procedural and substantive rules’ to deal with the growing frequency of recusal pleas.

The Delhi High Court recently ruled that no litigant or third party has any right to intervene, comment or enquire regarding a judge’s recusal from a case.

The Supreme Court has over time outlined various factors to be taken into consideration for deciding the impartiality of a judge. In Ranjit Thakur versus Union of India (1987), the SC held that to determine if a judge should recuse, what is relevant is the reasonableness of the apprehension of bias in the mind of the concerned party. “The proper approach for the Judge is not to look at his own mind and ask himself, however honestly, “Am I biased?” but to look at the mind of the party before him,” the Court ruled.

The SC in State of West Bengal versus Shivananda Pathak (1998), defined judicial bias as a “preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction”. Thus, it is a condition of mind which renders the judge incapable of impartiality in a particular case, the Court explained.

Formulating a more definite rule in the Supreme Court Advocates-on-Record Association versus the Union of India (2015), the Court observed that where a judge has a pecuniary interest, no further inquiry is needed as to whether there was a ‘real danger’ or ‘reasonable suspicion’ of bias. However, other cases require such an inquiry, with the relevant test being the ‘real danger’ test— whether there is a ‘real danger’ of bias, to ensure that the court is thinking in terms of possibility rather than the probability of bias.

In a controversial recusal ruling, Justice Arun Mishra in the Indore Development Authority versus Manoharlal and Ors (2019), held that a judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench to which a reference is made. Noting that merely having a legal opinion does not disentitle one from being impartial, Justice Mishra said, “We have to deal with the cases every day in which similar or somewhat different questions are involved concerning the same provision. For having taken a view once, if recusal is to be made, it would be very difficult to get a Judge to hear and decide a question of law….”

In February, Additional Sessions Judge Arul Varma recused himself citing ‘personal reasons’ less than a week after discharging Jawaharlal Nehru University student Sharjeel Imam and 10 others in the 2019 Jamia Millia Islamia violence case. The judge called the student activists arraigned in the case “scapegoats” and added that the police had “trampled the rights of the accused”. On March 28, the Delhi High Court set aside Varma’s order.

Delhi High Court judge Justice Anup Jairam Bhambhani in March recused himself from hearing accused Asif Iqbal Tanha’s plea against the ‘leak’ of his alleged confession statement by the Delhi Police to the media in a 2020 Northeast Delhi riots “larger conspiracy” probe. He observed that “no act on the part of a court must in any manner have a deleterious impact on the credibility of the justice system”.

During an earlier hearing, Justice Bhambhani indicated he may have to recuse himself after News Broadcasters & Digital Association (NBDA) moved an intervention application saying he had a “past association” with them. He remarked during proceedings that a judge’s “comfort level” is also a consideration when it comes to recusals, adding, “I never get into a matter where I myself am not comfortable with my independence”.

Contrasted with India, the U.S. has a well-defined law on recusals — Title 28 of the U.S. Code details the grounds for ‘disqualification of justice, judge, or magistrate judge’. Such rules are also codified in the American Bar Association’s Model Code of Judicial Conduct. This specifies three grounds for recusal — financial or corporate interest, a case in which the judge was a material witness or a lawyer, and a relationship to a party. However, on several occasions, judges recuse on their own — known as sua sponte recusals.

The U.K.’s law on judicial recusals evolved through judicial pronouncements. In the landmark case of R versus Gough, the ‘real danger’ test was adopted as the applicable standard based on of which recusal orders need to be passed. The test entailed disqualification solely on substantive and tangible evidence which conclusively highlights the presence of judicial bias and prejudice. However, the ‘real danger’ test was subjected to substantial criticism especially since the European Convention of Human Rights requires only the ‘appearance of bias’ to ensure that an onerous burden is not placed on any litigant to prove actual bias. Accordingly, a new test was formulated in Lawal v. Northern Spirit Ltd, where the standard laid down was to look at the likelihood of bias from the perspective of a fair-minded and reasonable observer.

Following the death of three cheetah cubs this week, the Centre on Thursday appointed a new steering committee, comprising national and international experts, to oversee the implementation of Project Cheetah.

The cubs were born to a translocated Namibian cheetah at the Kuno National Park in Madhya Pradesh in March 2023.

The 11-member Cheetah Project Steering Committee will be led by Rajesh Gopal, secretary-general, Global Tiger Forum and formerly of the India Forest Service and closely associated with Project Tiger.

The committee’s mandate is to monitor the progress of the cheetah reintroduction programme and advise the Madhya Pradesh Forest Department and the National Tiger Conservation Authority; to decide on opening up the cheetah habitat for eco-tourism and, suggest regulations in this regard, and to suggest ways to involve the local community in the project activities.

The committee will be in force for two years and will convene at least one meeting every month, besides conducting field visits to the Kuno National Park.

The members include scientists from the Wildlife Institute of India, Dehradun; some experts from the NTCA; and the Madhya Pradesh Forest Department.

Also on the committee are international experts, including Adrian Tordiffe, veterinary wildlife specialist, University of Pretoria, South Africa; Laurie Marker, Cheetah Conservation Fund, Namibia; Andrew John Fraser, Farm Olievenbosch, South Africa; and Vincent van dan Merwe, manager, Cheetah Metapopulation Project, The Metapopulation Initiative, South Africa.

Several of the international experts have been involved in the cheetah translocation project from Namibia and South Africa.