News & Editorial Analysis 19 December 2022


News & Editorial Analysis 19 December 2022


The Hindu News Analysis

Citizenship path to be eased for 6 minority groups from 3 nations ( Polity: GS ll) Page 1

The Union government will ease grant of citizenship to members of six minority communities from Pakistan, Afghanistan and Bangladesh whose passports have ceased to be valid during their stay in India.

The Home Ministry is expected to revamp the citizenship portal to accept passport and visas with expired validity as supporting documents to process citizenship application of Hindus, Sikhs, Parsis, Christians, Buddhists, Jains. 

In 2015, the Ministry amended the Citizenship Rules and legalised the migrants belonging to these six communities who entered India on or before December 31, 2014, due to religious persecution, by exempting them from the provisions of the Passport Act and the Foreign Act even as their passports expired. 

The Citizenship Amendment Act (CAA), 2019, that intends to grant citizenship to undocumented (or illegal) migrants from these six non ­Muslim communities from the three neighbouring countries is yet to come into force. The CAA could have helped the documented minority migrants in fast tracking their applications.


Missile destroyer INS Mormugao commissioned into Indian Navy (Security: GS lll) Page 10

INS Mormugao, the second of four stealth guided missile destroyers being built under Project 15B, was commissioned into Indian Navy.

It is named after the historic port city of Goa on the west coast, Mormugao.

The country’s growing economy is directly connected to its trade, most of which is through sea routes. Therefore, India’s interests are directly linked to the Indian Ocean. India being an important country in this region, the role of Navy becomes more important in its security.

The four ships are a follow-on of the Kolkata class  destroyers and named after major cities from all four corners of the country- Visakhapatnam, Mormugao, Imphal and Surat.

These ships are equipped with BrahMos supersonic cruise missile and long-range surface-to-air missiles.


India pushes for new biodiversity fund (Environment: GS lll) Page 12

There is an urgent need to create a new and dedicated fund to help developing countries implement a post-2020 global framework to halt and reverse biodiversity loss: India at the UN biodiversity  conference in Canada’s Montreal.

India maintained that conservation of biodiversity must also be based on common but differentiated responsibilities and respective capabilities (CBDR) as climate change also impacts nature.

So far, the Global Environment Facility which caters to multiple conventions, including the UNFCCC and UN Convention to combat Desertification, remains the only source of funding.

CBDR is defined as states have common but differentiated responsibilities in view of the different contributions to global environmental degradation. It was established as the 7th principle of the Rio Declaration adopted at the Earth Summit in 1992.


The Hindu Editorial Analysis

Basic Structure Doctrine

Introduction

The origins of the ‘Basic Structure’ ideology may be traced back to a post-independence struggle between Fundamental Rights (FR) and Directive Principles of State Policy (DPSP) over the question of enacting land reforms.

The following four incidents are crucial to comprehending the origins of the notion of “basic structure”: Minerva mills, Shankari Prasad (1951), Golak Nath (1967), Keshavananda Bharati (1973), and Shankari Prasad (1951) (1980)

The case of Shankari Prasad

The Supreme Court ruled that the legislature’s ability to modify the constitution under Article 368 also includes the power to amend Fundamental Rights.

It based its decision on the premise that the term “law” used in Article 13 exclusively refers to ordinary laws, not constitutional amendment activities.

The case of Golaknath

The Supreme Court overturned its decision.

Fundamental Rights are granted a transcendental and unchangeable position, and the Parliament cannot abridge or take away any of these rights, according to the ruling.

According to it, the constitutional amendment act is likewise a legislation under Art 13 of the Constitution.

In response to this decision, Parliament passed the 24th Amendment Act, which contained a provision in Art 368 declaring that Parliament has the power to revoke any of the fundamental rights.

The case of Keshavananda Bharati

The Supreme Court overturned its decision in the Golaknath case.

It maintained the 24th Amendment Act’s legality and stated that parliament had the authority to repeal or limit any of the FRs. However, such revisions should not affect the constitution’s “fundamental framework.”

Case of Minerva Mills

In response to the foregoing case, Parliament enacted the 42nd Amendment Act, which proclaimed under Article 368 that Parliament’s constituent power is unrestricted and banned courts from challenging such revisions.

The Supreme Court said that Parliament cannot take away the constitution’s ‘judicial review’ power since it is part of the ‘fundamental structure of the concept.’

Components of the Basic Structure

Constitutional rule of law

Indian polity’s sovereignty,  liberty and republican nature.

Review by a judge o Achieving a harmonious and balanced relationship between fundamental rights and directive principles.

Separation of powers is a term that refers to the separation of powers between two

Characteristics of the federal government

A parliamentary system is in place.

The principle of equality.

The nation’s unity and integrity.

Elections that are free and fair. o The Supreme Court’s powers under Articles 32, 136, 142, and 147

Articles 226 and 227 provide the HC power.

Parliament has little power to modify the constitution. o State of welfare. o An individual’s freedom and dignity.

The Basic Structure notion has been stressed in several Supreme Court decisions, including Indira Nehru Gandhi, Minerva Mills, Waman Rao, and I.R.Coelho.

The primary objections of the basic structure theory

The theory, it is commonly argued, has no validity in the Constitution’s wording. There is no textual support for the doctrine. There is no provision stating that this Constitution has a basic structure that is beyond the amending power’s jurisdiction.

Its critics further think that the doctrine empowers the court to impose its philosophy on a democratically elected government.

Because there is no clear definition of what comprises basic structure, the doctrine is confusing.

The doctrine has recently been used in situations that have been viewed as examples of judicial overreach. The Supreme Court used this theory to find the NJAC bill null and void.

Arguments in Support of the Basic Structure

Article 13 (2) ensures that citizens’ fundamental rights are safeguarded. Parliament and state legislatures are expressly forbidden from enacting legislation that restricts or restricts citizens’ fundamental rights.

The constitution clearly states that the Supreme Court is the constitution’s guarantee and protector.

Without this notion, an authoritative government may have diluted the constitution’s requirements.


The Indian Express Editorial Analysis

Bilateral Investment Treaties

Introduction

BITs are bilateral treaties between two countries that attempt to protect both countries’ investors’ investments.

BITs have the following goal: BITs protect investments by setting constraints on the host state’s regulatory behaviour, preventing undue interference with the foreign investor’s rights. Imposing duties on host states to provide fair and equitable treatment (FET) to foreign investment and not to discriminate against foreign investment are examples of these conditions.

Allowing revenues to be repatriated under certain circumstances agreed upon by the two countries.

Most crucially, permitting private investors to sue host states for monetary compensation if the latter’s sovereign regulatory measures are in violation of the BIT.

BITs and India

Since signing the first BIT with the United Kingdom in 1994, India has signed 86 bilateral treaties, the most recent of which was signed with Brazil in 2020.

BITs have been one of the most important drivers of FDI into India.

According to a 2016 study, BITs contributed to increased FDIs in the 2001-2012 era by giving substantive protection and commitment to foreign investors.

However, India has been the recipient of many penalties imposed by an International Dispute Settlement (ISDS) tribunal.

For example, regulatory actions such as the application of retrospective taxes, the termination and revocation of spectrum and telecom licenses are examples.

As a result, the BITs were reviewed. In 2016, India introduced the Model BIT. Its goal is to serve as a starting point for negotiating new BITs with other countries, as well as renegotiating existing ones.

In 2016, India shifted away from an overly investor-friendly strategy to a relatively restrictive approach to foreign investments, according to Model BIT.

Between 2016 and 2019, India unilaterally cancelled 66 BITs, sending unfavorable signals to the international investment community.

This is obvious by the fact that no country has expressed an interest in renegotiating based on the Model BIT.

India has only signed three accords since 2016, none of which have yet come into force.

Model BIT-Related Issues

Model BIT restricted the definition of investment that was required to qualify for BIT protection.

The Transition from Asset-Based to Enterprise-Based Management: According to Model BIT, India proposes a restricted ‘enterprise-based’ investment definition, with only direct investments covered under the treaty.

Negative List: In addition, the Model BIT’s definition of investment includes a negative list that excludes portfolio investments, debt-security interest, intangible rights, and other items from the definition.

As a result, the new definition ignores the expanded scope of foreign investments in today’s era of globalization and liberalization.

Exhaustion of Domestic Remedy Clause: The Model BIT includes a clause requiring the exhaustion of domestic remedies before resorting to international arbitration.

According to the ‘Ease of Doing Business 2020’ report, India now ranks 163 out of 190 nations in terms of contract enforcement ease, with a dispute resolution time of 1,445 days and 31% of the claim value.

This is hardly likely to boost international investor confidence.

Broad Discretionary Authority in the Host State: It also includes a ‘Treatment of Investments’ clause that said that neither party would subject investments to measures that are clearly abusive and in violation of due process.

However, there is no definition of what constitutes a violation of “due process.”

Furthermore, Model BIT says that if the Host State decides at any point in time that the claimed breach under the BIT is a subject matter of taxes, the Host State’s decision is non-justiciable and exempt from review by an arbitral tribunal.

The Model BIT makes the basic assumption that a foreign investor can put his or her trust in domestic court interpretations and systems.

This might potentially provide the Host State broad power to unilaterally exclude any matter from a tribunal’s jurisdiction simply by claiming that the action in question is related to taxation.

What Steps Should Be Taken?

Using a Hybrid Approach to Definition: Given the apprehension of foreign investors, it is necessary to alter the definition of investment to include a combination of asset- and enterprise-based definitions.

While maintaining a negative list (to exclude those specific categories or sectors that the Parties believe appropriate), such a definition would ensure that direct and indirect investments are protected under the BIT while yet allowing for regulatory exclusions.

Following International Norms: India may consider revising the standard of treatment clause to line it with international norms and include the customary standard of fair and equitable treatment protection.

In addition, the open-ended phrases in the Model BIT must be clarified. India may face fewer disputes and BIT claims as a result of this.

Conclusion

Initiatives like Make in India 2.0 and the liberalization of FDI caps across sectors are positive moves.

Foreign investors may be hesitant to invest in India until the government takes a more balanced approach in the Model BIT 2016.

As global corporations consider shifting their investments away from China, now is an excellent opportunity to review and update the Model BIT, moving away from the current inward-looking protectionist stance and toward a more pragmatic one.


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