The Supreme Court asserted that it does not intend to second guess the Centre but it shall continue to intervene to determine whether policies conform to the standards of reasonableness.

The bench of Justices DY Chandrachud, Ravindra Bhat and Nageswara Rao has established the court’s jurisdiction in keeping a check on the policies of the Central government while dealing with the pandemic.

The Centre in its May 9 affidavit had presented points to discourage judicial intervention of the court in what a policy matter which should be left to the discretion and wisdom of the Centre. The affidavit further states that the executive has “room for free play in the joints” while dealing with a pandemic and that the steps taken by it need to be appreciated from a short-term and holistic perspective even if they may turn out to be imprudent in the long run.

The affidavit further states that judicial review is warranted only on account of manifest arbitrariness and interference of courts is uncalled for when the government is operating on expert medical and scientific opinion to tackle a medical crisis. The affidavit also goes so far to state that any “over-zealous judicial intervention, though well-meaning, in the absence of expert advice or administrative experience may lead to unintended circumstances where the executive is left with little room to explore innovative solutions.”

The court found the need to address this in a separate section of the order under the heading “separation of powers” whereby it stated that separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies. The court pointed out that the Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. The court also emphasised that “Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform.”

The court also cited observations made by the Supreme Court in United States while over ruling policy decisions, where the US court had stated that “a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists” and stated that while it respects the judgment of experts, the Constitution cannot be put away even during a pandemic.

The court reiterated that it does not intend to second-guess the wisdom of the executive but the court still has the jurisdiction to “determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons.”

The court stated that it is exercising a “dialogic jurisdiction” where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. On a parting note, the court put forth that this is an open court judicial process, and it would conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.

The next date of hearing is June 30.

The complete judgment may be read here:

Related:

Why can’t allocated budget of Rs.35,000 crores be used for vaccinating 18-44 year olds: SC asks Centre
Centre’s paid vaccination policy for 18 to 44 years, prima facie arbitrary and irrational: SC
Odisha CM bats for centralised procurement of vaccines

The post Courts cannot be silent spectators when rights of citizens are infringed: SC appeared first on SabrangIndia.

“In the context of a global pandemic, where the response and strategy of the nation is completely driven by expert medical and scientific opinion, there is even little room for judicial interference. Any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences, in absence of any expert advice or administrative experience, leaving the doctors, scientists, experts and executive very little room to find innovative solutions on the go,” read Centre’s affidavit to the Supreme Court on its vaccine policy.

The Supreme Court Bench of Justices Chandrachud, Ravindra Bhat and L Nageswara Rao that sat today to continue hearing the suo motu matter on Covid-19, In Re Distribution of Essential Services and Supplies During Pandemic, posed some serious questions to the Centre on its vaccine policy.

LiveLaw quoted the Bench saying, “We are not framing policy. There’s an order of 30th April that these are the problems. You will be flexible. You can’t just say that you’re the Centre and you know what’s right. We have a strong arm to come down on this.” This was in response to Solicitor General Tushar Mehta’s remarks that these are policy issues on which the Court has limited judicial review power.

“We are not changing the policy. We are asking you to please wake up and smell the coffee and see what’s happening across the country”, remarked Justice Chandrachud. Justice Bhat also intervened and reportedly asked Tushar Mehta, “The only thing we want to address is the dual pricing policy. You are asking the States to pick up and compete with each other.”

The Centre had argued that differential prices for Centre and States is the new Liberalised Pricing and Accelerated National Covid-19 Vaccination Strategy that would further ramp up the pace of Covid-19 vaccination. It defended this policy by submitting that differential pricing is based on the concept of creating an incentivised demand for the private vaccine manufacturers in order to instil a competitive market resulting in higher production of vaccines and market driven affordable prices for the same.

“This will also attract offshore vaccine manufacturers to enter the country. This will result in increased availability of vaccine”, claimed the Centre. Justice Chandrachud, as reported by LiveLaw, further questioned the Centre about how States have been left to fend for themselves. He reportedly asked, “We have some concerns. Now we have a spectacle, where different municipal corporations, different states are issuing global tenders. We want to know, is this the policy of the Government of India that every Municipal corporation, every state is left to their own (devices) to get vaccines? Look at the capacity of BMC (Brihanmumbai Municipal Corporation), it might have a budget comparable with some of our States. Does the Government of India contemplate that for the procurement for foreign vaccines, there will be individual states or corporations submitting bids or are you going to be a nodal agency for the bids?”

Justice Ravindra Bhat, concerned about the same issue, raised questions about the rationale behind letting manufacturers decide the price of the vaccine. “Till date we have not seen the policy document which articulates this. We want to see the files. We want to know the rationale. To say that the centre will procure at a lesser price, and manufacturers are free to fix prices at their own whims…. we want to know the rationale. We want to know the rationale why the pricing of 50% vaccines is left to manufacturers.”

The Solicitor General attempted to provide answers to these questions and stated that the question of states or municipal corporations issuing tenders might be “academic” as companies such as Pfizer, Moderna etc., have a policy of dealing with only the Union government. However, Justice Chandrachud countered this by pointing out that the Mumbai Municipal Corporation has received bids for the Russian vaccine- Sputnik V.

Justice Chandrachud, during the hearing, also observed, “There is a vital issue. Article 1 of the Constitution says that India, that is Bharat is a Union of States. When the Constitution says that, then we follow the federal rule. Then the Government of India has to procure the vaccines and distribute them. Individual States cannot be left in a lurch”, reported LiveLaw.

The Bench also wondered about the difference between the age group above and below 45 with respect to vaccine pricing. The Centre is giving free vaccines only to the 45 above age group. 

The Bench told the Centre, “Our issue is what is the basis for Centre to say that for 45 above, we will provide vaccines free of charge, and for rest, it will be procured at a charge. Two concerns are: You have constantly told us that the situation is dynamic. In the second wave, it was the pre-45 population which also suffered a great deal. Why should the Centre only procure for 45 age groups and leave the ones below on their own? What is the rationale? Can we say that 50% of the population between 18 to 45 will be able to afford the vaccines? Not at all!”

Mandatory CoWin registration

Another issue pointed out by the 3 judge Bench was about mandatory registration on CoWin application that ignores the fact that a considerable portion of India’s population does not have access to smartphones or the internet.

Bar & Bench quoted Justice Chandrachud saying, “What about the digital divide. For rural areas you have said villagers can register on the CoWin app through NGOs. Our law clerks and secretaries have tried to register on the CoWin app so we know how it works.”

Tushar Mehta argued that a poor villager who does not have a smartphone can go to a common centre and register himself for the vaccine. To this, Justice Chandrachud said, “A poor worker from Jharkhand has to go all the way to a common centre? You can certainly have registration, but how will you answer the digital divide? How do you answer the question about migrant labourers who have to go from one State to another?”

Justice Bhat added, “This is a real fear amongst the people. I have gotten distress calls from people across the country, that they’re not getting slots. They’re all gone within seconds.”

The court has given two weeks’ time to the Centre to file an affidavit on these issues.

The order may be read here:

Related:

SC sets up National Task Force for oxygen allocation across all States, UTs
In the battle of shifting responsibility of supplying oxygen, citizen’s life cannot be jeopardised: SC
Deaths certificates should clearly state Covid-19 as the cause: SC
Cannot be a mute spectator during crisis: SC on Covid-19 suo motu matter

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The e-commerce giants are now under scrutiny for probable violation of the FDI norms in India.

Image Courtesy: india.com

The festive season in India draws humongous crowds to the market. But, in the recent years, a large portion of these crowds have shifted to shopping from brick-and-mortar outlets to e-commerce giants like Amazon and Flipkart for the deep discounts they offer, The Print reported.

These enticing deals that were the main reason for high sales, have now come under the scanner of the government over alleged ‘predatory pricing’ to gain more customers, a business practice that aims to mitigate all competition and one that is under a lot of controversy.

A fortnight ago, a leading Indian trader body, the Confederation of All India Traders (CAIT) had approached the government saying that the discounts offered by Flipkart and Amazon violated the country’s foreign investment rule for online retail.

Calling for a ‘blanket ban’ on such sales, a letter by CAIT to the federal trade minister PiyushGoyalread, “By offering deep discounts ranging from 10% to 80% on their e-commerce portals, these companies are clearly influencing the prices and create an uneven level playing field which is in direct contravention of the policy.”

“He (Goyal) assured the delegation that if need arises and unethical business practices are proven, the government may order an investigation,” said Praveen Khandelwal, CAIT Secretary General.

Prior to the complaint by CAIT, the Department for Promotion of Industry and Internal Trade (DPIIT) also sought to meet representatives of Amazon and Flipkart following complaints by offline retailers that these festival discounts were hurting their business.

Speaking to LiveMint, a Flipkart spokesperson said, “We have always been fully committed to doing business the right way and appreciate the consultative approach that the Commerce Ministry & DPIIT have taken. We continue to be willing to work with the government & all stakeholders to promote a regulatory environment that creates balanced growth that is good for India. We are proud to be supporting job growth in India, supporting sellers, MSMEs, artisans and working with logistics partners including thousands of kiranas& general trade stores.”

What the FDI rules say

Under the new FDI rules that came in on February 1, e-commerce companies are barred from striking contracts with private companies for exclusive sales of certain items, for example, the One Plus – Amazon partnership and offering discounts.

By preventing exclusive marketing or selling rights in its new FDI policy for e-commerce, the government has disallowed online marketplaces from exclusively selling a product.

As per the current FDI policy, the government permits 100 per cent FDI in the marketplace model of e-commerce but not in the inventory-based model. The online firms are also not allowed to influence directly or indirectly prices of goods to be sold on their platforms.  Both Amazon and Flipkart have maintained that they follow the current FDI policy.

Keeping in mind the current situation, the Competition Commission of India (CCI) will also issue a ‘soft policy advisory’ to the e-commerce industry.

In August this year, the Ministry of Consumer Affairs, Food & Public Distribution released  ‘E-Commerce Guidelines for Consumer Protection 2019’ to protect the rights of online customers. These guidelines make it the e-commerce platform’s responsibility to maintain a “level playing field” and to ensure that it does not “influence the price of the goods or services”.

What the Centre says

Following the complaints from the DPIIT and CAIT, the government asked Flipkart and Amazon to disclose names of top five sellers on their platform, price list of goods of preferred vendors and the kind of support provided to sellers.

Commerce Minister PiyushGoyal said, “E-commerce companies have no right to offer discounts or adopt predatory prices. Selling products cheaper and resulting the retail sector to incur losses is not allowed.”

He added, “If law has been violated in any manner, letter or spirit, strictest action will be taken. BharatiyaJanata Party, the NarendraModi government is very clear that we stand with the small retailers across the country.”

While the advent of e-commerce websites like Amazon and Flipkart have resulted in a free market system, they have above all opened up a vast world, full of innovation, to the online shopper. Such variety is hard to come by at local stores. With festive discounts being dished out all over the country, isn’t it wrong to single out e-commerce companies that are doing the same?

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We Will Not Survive This Disaster: Kashmiri Entrepreneurs As Lockdown
 
 

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A gram sabha (village committee) meeting organised in the Chasagurjang panchayat of Pallahara block of Odisha. The panchayat has a population of 5,000 and has asked the state government to open mini anganwadi centres for distant hamlets that do not have a full-fledged anganwadi.

“Our child’s nutrition has been compromised because we don’t have an anganwadi centre in the village,” said Munda, who lives in a small hamlet in the Pallahara block of Odisha’s Angul district. “We have to cross a river to get to the nearest anganwadi. How am I supposed to send my four-year-old son to the centre every day?”

The poorest people–those in the “lowest wealth quintile” or the 20% with the least amount of wealth–and other disadvantaged social groups such as the scheduled castes (SCs) and scheduled tribes (ST) living in small hamlets such as in Pallahara have the least access to anganwadi services, data from the fourth National Family Health Survey (NFHS) show. Living in remote areas, as many from STs do, exacerbates this inaccessibility.

STs comprise 8% of India’s population (104 million) but 45.9% of those from STs were in the lowest wealth bracket, more than any other social group, as IndiaSpend reported in February 2018. In 2015-16, as many as 19.7% of ST children under five years were stunted–had short height for age–and 19.0% of SC children, as compared to 16.4% of other backward castes and 11.9% of ‘general’ castes, NFHS data show.

Mini anganwadis for vulnerable populations

Low- to middle-income social groups are more likely to get food supplements, health check-ups and other ICDS services, NFHS-4 data show. In 2015-16, 63.3% of the poorest children did not get a health check-up as against 54.9% children from the second wealth quintile (poorest 21% to 40% of the population). Those better off prefer private services and hence have a low utilisation of ICDS services.

In 2015-16, a higher proportion of ST children received food supplements, health check-ups and pre-school education than other social groups, but this is low as compared to the proportion of poor people belonging to STs that need these services. For instance, even though almost half of the ST population (45.9%) belongs to the poorest quintile (poorest 20%), and 24.8% to the second lowest quintile, 60.4% of their children received food supplements under ICDS, NFHS data show.

Compare this to other backward castes: 18.3% of their population belongs to the lowest wealth bracket, and 19.3% to the second lowest, while 45.6% of children received food supplements under ICDS, data show.

Administrative shortcomings

The meeting that Munda attended was organised by members of the gram panchayat (elected village committee) and community leaders to hear people’s concerns and educate them about the need for a mini anganwadi.

“We are proposing two mini anganwadi centres in distant hamlets,” said Sashank Shekhar Naik, 47, sarpanch (village head) of Chasagurujang. “Our priority is to make mini-anganwadi centres available to children from the scheduled tribes who live in faraway villages. Children from here never get their take-home rations. It is impossible for parents to take them to the anganwadi centre every day and lose their wages.”

Since 1975, the government has run a supplementary nutrition programme under ICDS, which provides take-home rations–chhatua (powdered grain), eggs and pulses in the case of Odisha–for pregnant women, lactating mothers and children. It also provides hot, cooked meals for children, as well as pre-school education for children aged three to six, at anganwadi centres, as IndiaSpend reported in August 2019.

This helps support a child’s first 1,000 days–a window of opportunity in early childhood when a child’s growth and cognitive development are the fastest.

ICDS was universalised in 1995-96 to cover all community development blocks, and now reaches remote corners of the country. However, the poor, especially those from disadvantaged groups, are still left behind, as IndiaSpend reported in February 2018. Even in better-performing states such as Odisha, the lowest on the social ladder are excluded as they often live in remote areas.

“Anganwadi workers are not from our village, even if our children go to the centres, they are the last ones to be fed,” said Munda Saunto, 44, a panchayat member. “Auxiliary nurse midwives and ASHAs (grassroot health workers) hardly ever visit our village because of the rough terrain.”
“Children from distant hamlets are supposed to come to my anganwadi centre, but their attendance is the lowest,” said Nirupama Nayak, 31, an anganwadi worker in Udayapur village, which also covers Jayapur village. “They cannot travel 3 km every day, alone, to visit the centre. As a result, they miss out on their hot cooked meals, neither do they get pre-school education.”

The government sanctioned 116,848 mini anganwadi centres in 23 states and union territories in 2007, data from the National Institute of Public Cooperation and Child Development show. There are no data on how many mini anganwadis are currently operational.

Until 2005, only one of the six services–hot cooked meals–were provided in a mini anganwadi under the ICDS. In 2007, norms were revised so that all six services were to be provided, ICDS guidelines show.

Even though the villagers in Pallahara want an anganwadi, there is an administrative issue: Kuna Munda’s village, Jayapur, overlaps with another gram panchayat; half the population comes under that panchayat, which means that Jayapur does not have the minimum 150 people to make it  eligible for a mini anganwadi centre. The villagers have proposed two mini anganwadis, one in each gram panchayat.

Even the panchayat members were unsure whether Munda’s village belonged to the panchayat of Chasagurujang, where the meeting was taking place, or if he should have gone to the other panchayat that Jayapur is also a part of.

“We have submitted proposals to the government for a mini anganwadi centre especially in the hamlets without an anganwadi, where children cannot reach the nearest centre by foot. It is under consideration and the government will sanction it soon,” said Manoj Mohanty, district collector of Angul.

Renu Pati, the child development project officer for Angul district who oversees ICDS services, and should have been involved in sending the proposal, said she had not received any proposals yet for a mini anganwadi. She refused to answer any other questions.

Reduced government burden, improved health
The lack of access to nutrition could be felt most acutely in disadvantaged communities. For instance, in 2013, 19 infants died due to malnutrition when the Odisha government ran a special project for the development of vulnerable tribal groups–the most disadvantaged among STs. Under the project, 216 children were identified as severely underweight and suffering from severe acute malnourishment, but 60 of these were not referred to any hospital, found the 2017 Comptroller and Auditor General report, the latest on particularly vulnerable groups. “No remedial measures were taken by micro-projects to eradicate malnutrition,” the report said.

In addition to helping children and families, mini anganwadi centres would also reduce the burden on the government. Currently, nutritional rehabilitation centres support highly malnourished children and mothers, spending Rs 125 a day per child and mother in Odisha. A malnourished child, along with their mother, is kept for a minimum of 15 days at the nutritional rehabilitation centre under close observation, while focusing on their nutrition.

In January 2019, Nayak, the anganwadi worker, sent three children to the nutritional rehabilitation centre in Pallahara block’s community health centre, 40 km from the village. Two of the children were in the red zone–signifying severe malnourishment with very low weight for height–and the third child was in the orange zone, showing moderate malnourishment. A closer anganwadi centre could have helped these mothers and children supplement their nutrition and avoid severe malnourishment. 

(Ali is an IndiaSpend reporting fellow.)

Courtesy: India Spend

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A report by a top Delhi-based think tank, National Council of Applied Economic Research (NCAER), prepared under the direct leadership of Amitabh Kant, ex-secretary, Department of Industrial Policy and Promotion (DIPP), Government of India, has claims that Gujarat ranks No 1 in the NCAER State Investment Potential Index (N-SIPI), though there is a dig.

N-SIPI has been divided into two separate indices. The first one includes five “pillars” based on which the index has been arrived it. These pillars are: labour, infrastructure, economic conditions, political stability and governance, and perceptions of a good business climate. It is called N-SIPI 21, as it includes a survey of 21 states out of 29.

The second index, called N-SIPI 30 (29 states and one union territory), is based on an index arrived at on the basis of four of the five pillars, labour, infrastructure, economic conditions, political stability and governance – but excludes the “perceptions of a good business climate”, as seen by top Indian business executives.
 
Funded by the Foreign and Commonwealth Office, British High Commission, India, the report finds that in N-SIPI-21, Gujarat ranks No 1 in two of the five pillars, which are — political stability and governance, and perceptions of a good business climate. As for N-SIPI-30, Gujarat is nowhere near No 1 in any of the four pillars analysed to arrive at the ranking.

To quote from the report, “In N-SIPI 21, Kerala, Tamil Nadu and Karnataka top the list under the labour pillar. In the infrastructure Pillar, Delhi tops followed by Punjab and Gujarat. In the economic climate pillar, while Delhi comes out top again, it is closely followed by Andhra Pradesh and Maharashtra.”

As for N-SIPI 30, where only secondary data has been analysed, and perceptions of businessmen have been excluded for analysing any of the four pillar, Gujarat ranks No 4 in the first pillar, labour, with first three rankings going to Kerala, Tamil Nadu and Karnataka. In the second pillar, infrastructure, Gujarat again ranks No 4, with Delhi, Goa and West Bengal occupying the first three positions.
 

In the third pillar, economic conditions, Gujarat ranks No 5, and the states which rank above Gujarat are Delhi, Goa, Andhra Pradesh and Maharashtra. And in the fourth pillar, governance and political stability, Gujarat again ranks No 5, with four states ahead of the state – Tripura, Mizoram, Nagaland and Tamil Nadu.

The report states, it provides “a single composite investment rating of how the 29 Indian states and the Union Territory of Delhi are positioned to encourage and attract investment”, adding, it also provides “an entry point in thinking about new investment for domestic and overseas firms and encouraging a more competitive ethos among India’s states.”

Revealing Government of India hand in preparing the report, it states, “We are grateful to DIPP Secretary Amitabh Kant for his leadership in our consultations with his department officers during the course of this work. We also greatly welcome the enthusiasm shown by Kant’s successor, Ramesh Abhishek, in the work at NCAER for N-SIPI, and for Kant’s continuing interest in N-SIPI as the new CEO of the NITI Aayog.”
 
 
Analysing performance of two industrial sectors, pharmaceuticals and automobiles, the report does not find Gujarat No 1 in either of them. It says, “In terms of profitability in the pharmaceutical industry, Maharashtra, Andhra Pradesh (including Telangana), and Gujarat appear to be the top players followed by Karnataka and Uttarakhand.” It adds, “In terms of the market demand for pharmaceutical products, Kerala, Punjab and Karnataka top the list followed by Jammu and Kashmir and Tamil Nadu.”
As for automobiles, it says, “The dominant states in the automobile sector, on the other hand, are Delhi, Maharashtra, and West Bengal, followed by Haryana and Goa. In the retail sector, Delhi, Goa, and Kerala come out as the top three states with the highest potential for growth, followed closely by Maharashtra and Karnataka.”

http://www.counterview.net/2016/03/gujarat-no-1-in-govt-of-india-pushed.html
 

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