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Digital Capabilities vs. Claims of Incapability by SBI in the unconstitutional, illegitimate, immoral Electoral Bond case

Written By mediavigil on Tuesday, March 05, 2024 | 11:12 PM

After making claims about robust India's digital public infrastructure (DPI), comprising distinctive digital identification, a payments system, and a data exchange layer, the submission of State Bank of India (SBI) in the Supreme Court of India about its digital incapability cannot be deemed trustworthy. What happened to the claim made as part of G20 Digital Economy Working Group about India's Unified Payments Interface (UPI) having revolutionized digital payments.

A data scientist and a former student of the National Forensic Sciences University, a public international university located in Gandhinagar, Gujarat and recognized as an Institution of National Importance by the Ministry of Home Affairs has decoded the indefensible claims made by State Bank of India (SBI). He states the following:

1. Digital Capabilities vs. Claims of Incapability: From a data viewpoint, the contradiction between SBI's existing digital infrastructure and its claims of incapability is striking. SBI's centralized banking system, likely built on a combination of modern relational database management systems (RDBMS) and legacy systems (possibly including COBOL-based applications), is capable of tracking and managing millions of transactions daily. These systems are designed with unique identifiers for transactions (e.g., transaction IDs) and robust query capabilities, facilitating rapid data retrieval and reporting. The assertion of difficulty in providing specific transactional information thus raises questions about procedural rather than technical limitations. This discrepancy raises questions about transparency and accountability, especially ahead of parliamentary elections.
2. Technical Feasibility of Meeting the Court's Demands: The statement by an anonymous COBOL programmer that generating the required reports is a "one-day job" underscores the simplicity of the task from a technical standpoint. Accessing transactional databases and running SQL queries to extract and format the necessary data should be straightforward for a bank's IT department. The use of automated scripts for data extraction and report generation is a common practice, highlighting that the delay is likely not due to technical constraints.
4. Misrepresentation to the Supreme Court: The request for an extension, in light of the bank's technical capabilities, may suggest a strategic maneuver rather than a technological hurdle. In the daily practice of data science, the ethics of data handling and reporting are crucial. This scenario emphasizes the need for transparent data governance practices and the ethical responsibility of institutions to accurately report data, especially when it impacts public interest and governance.
The most prominent public sector bank (PSB) in India has recently announced that it needs a 120-day time frame to collate 44,434 sets of data related to electoral bonds. It amounts to collation of 370 sets of data per day!
Unbelievably, given the state-of-the-art technology and operational capacities of institutions such as the SBI, this task can be completed within a single day. 
It is worth noting that there are many Python libraries available and machine learning tools that are well-suited for large-scale data collection. 
However, the fact that the largest PSB in India is unwilling to utilize these technological tools raises questions as to the efficiency and reason behind its stated timeline. 
In view of the clear capabilities of the data science domain in India, the Supreme Court should consider collaborating with the data science community. 
The extraction and collation of the required data can be expedited with the help of the community on a voluntary basis. 


All the perfumes of Arabia will not remove the taint of Bhopal disaster

Written By mediavigil on Friday, February 23, 2024 | 5:34 AM

One is saddened by the departure of Fali S. Nariman, a noted nonagenarian jurist without donating to the Bhopal disaster victims the legal fees which Union Carbide Corporation/Dow Chemicals Company, a US multinational company paid him, to erase the taint of Bhopal disaster. Prof. Upendra Baxi's advice in this regard is recorded in Nariman’s autobiography-Before Memory Fades. Notably, Nariman also represented asbestos companies. Carcinogenic Asbestos is banned in 70 nations. Its safe and controlled use is impossible. Dow Chemicals Company set up $ 2.2 billion compensation fund to pay victims of asbestos diseases, a liability of Union Carbide in US but not in India. Nariman departed without repenting for having represented corporate criminals. Human life is not confined to one's professional compulsions. One's inner life is guieded by moral compulsions, not professional ones alone.   

Nariman served as Additional Solicitor General of India from 1972 to 1975 but stepped down to protest the Internal Emergency imposed by the then Indira Gandhi led government. Nariman was right to conclude that "One of the lessons of the Internal Emergency (of June 1975) was not to rely on constitutional functionaries. These functionaries failed us-ministers of government, members of Parliament, judges of the Supreme Court, even the president of India". It revealed that even the president of India who signed the Proclamation of Emergency in compliance with the oral instructions prior to its intimation to the council of ministers on the night of June 25, 1975, cannot be trusted. As a consequence Constitution (44th Amendment) Act, 1978 had to be enacted insert Article 352 (3) to ensure that in future president must sign Proclamation of Emergency only after the decision of council of ministers is communicated to him/her in writing. This provision became effective from June 20, 1979. But Nariman forgot to recollect that it was during the Emergency that Union Carbide Corporation (UCC) was granted industrial license to set up its hazardous insecticide factory and research and development centre which was reportedly testing and manufacturing war chemicals in Bhopal.           

In the aftermath of world's worst industrial disaster in the factory of UCC, Nariman appeared for UCC as the lead advocate with Bomi Zariwala, his junior to defend it against the victims of UCC's industrial disaster. UCC engaged him late 1985 in the civil litigation arising out of the disaster. Nariman will have us believe that it all started on September 5, 1986 when Union of India filed a suit on behalf the claimants, the disaster victims under the provisions of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 in the District Court of Bhopal demanding $ 3.3 billion as compensation from the UCC. The 1985 law was enacted on March 29, 1985 to make Union of India the sole plaintiff in a suit against the UCC and other defendants for compensation arising out of the disaster.  

Nariman's memory seems to have faded in this regard because the fact is that it all started with the filing of suit of Union of India on behalf of all the victims in the Southern District Court, New York presided over by judge John Keenan on April 8, 1985 after some 145 cases which were filed on December 7, 1984 on behalf of victims in various US courts were consolidated and placed before the judge. Union of India had demanded $ 3.3 billion as compensation from the UCC. The suit was filed in the District Court of Bhopal after judge Keenan dismissed the claim on May 12, 1986 subject to the condition that UCC will submit to the jurisdiction of Indian courts.   

On December 17, 1987, Judge Deo, District Judge, Bhopal ordered an interim compensation of Rs. 350 crores. This was challenged before the High Court at Jabalpur, Justice S.K. Sheth reduced the interim compensation to Rs.250 crores. Union of India and UCC challenged this on September 8, 1988 before the Supreme Court. On February 14/15, 1989, Supreme Court approved an abrupt settlement arrived at in the appeal by UCC whereby $ 470 million (its equivalent then was Rs 615 crores) was to be paid by it and its Indian subsidiary to the Union of India in full and final settlement without admitting liability. The role of R. S. Pathak, the 18th Chief Justice of India who relinquished office midway post 1984 disaster unjust settlement on "casual election" to join as a Judge, International Court of Justice and that of Nariman has remained under scrutiny since then. One has learnt that Pathak was all ready to leave but was forced to wait because he had many many judgments pending. If one looks at his judgments between February 1989 and May 1989, one can find the urgency embedded in it. Notably, some of his judgements did not get delivered but were released.  

Pathak was an elected judge of the International Court of Justice following the death of M. Nagendra Singh, an Indian judge who was then serving his second term. He served in this position from 1989 to 1991. In 1991 India decided not to renominate Pathak but he entered the fray with the backing of Ireland. After the Irish government came under attack from legislators who blamed Pathak for approving, as Chief Justice of India, the $470-million Bhopal disaster settlement with UCC, Pathak withdrew from the race. Both Pathak and Nariman were disliked because of this settlement. 

Nariman's autobiography reveals how he quoted Pathak copiously to defend himself in his writings on Bhopal disaster case. Taking note of this Prof. Upendra Baxi wrote, " Mr Nariman's invocation of Chief Justice Pathak's sonorous invocation is the ultimate perfidy."    

Recollecting Nariman's respect for Pathak, A.J. Philip, a senior journalist writes, "It is jokingly said that if you have a few millions of rupees to hire the services of Nariman, you can murder anyone and get away with it. No, money is not the only determinant for him. As my memory goes, he did not charge a single penny, though he pored over my case and suggested many changes in the affidavit I and the reporter concerned had to file in the High Court. What mattered to him was that The Tribune Trust was headed by Justice R.S. Pathak, a former Chief Justice of the Supreme Court of India".    

In his autobiography, he has recorded that he faced national and international criticism. Laurie S. Wiseberg, the editor of Human Rights Tribune, a prestigious foreign publication criticing him in 1992 in an article titled " Fallen Angels?" for appearing on behalf of UCC even as he served as a member of the executive committee of International Commission of Jurists (ICJ), Geneva. Nariman had responded to this criticism. Prof. Upendra Baxi had resolved not share any public platform with Nariman ever since he assumed the UCC advocacy. Both exchanged arguments in this read in an 2004-5 issue of Seminar, a reputed Indian journal.     

Several years later, in an interview with Karan Thapar on CNN-IBN, Nariman regretted the decision to take the UCC's case. He said, "I mean, one is always ambitious at that age. But I found later, but then it's too late. One can't walk out of the case one has already taken up... it was not a case; it was a tragedy." He told Thapar on CNN-IBN’s “Devil’s Advocate program that "he would not have accepted, “If I had to live my life all over again, as a lawyer, and the brief came to me, and I had foreknowledge of everything that later came in, I would certainly not have accepted the civil liability case which I did.” 

Given the fact that he continued to be UCC's lawyer, he must have known about an order of the Madhya Pradesh High Court's Divsion Bench of Justices Sheel Nagu and Devnarayan Mishra dated November 28, 2023 has initiated contempt proceedings against officials of the state and Union governments. But the order was recalled on February 19, 2024. Initially, the order had found these officials guilty and served notice for their failure to comply with the Supreme Court's direction dated August 9, 2012 seeking maintainance of consolidated medical records through computerisation and networking of medical records of all hospitals and clinics where gas victims have been undergoing treatment and for the failure of these officials to provide quality medical care through specialists and with the best of facilities. Now, the order of High Court's Division Bench of Justices Sheel Nagu and Vinay Saraf dated February 19, 2024 states that "it would be appropriate that assistance of Monitoring Committee is sought. It is thus directed that each contemnor or his/her representative, who should not be below the rank of Class-1 Gazetted Officer should appear on the next date of meeting of Monitoring Committee to enable the Monitoring Committee to assess present state and extent of compliance of order of Apex Court dated 09.08.2012 passed in Writ Petition (C) No.50/1998 and various directions passed by this Court and thereafter prepare report under various heads showing compliance/non compliance. The Monitoring Committee is requested to assist this Court by submitting report as enumerated above as expeditiously as possible. List in the third week of April, 2024." The unending wait for justice for the victims of the disaster is unlikely to come to an end in near future.  

Before his departure Nariman witnessed how on March 14, 2023, the Supreme Court's Constitution Bench led by Justuce S. K. Kaul dismissed the Union government’s curative petition against the unjust settlement of February 1989 on ground that it was the government which had categorised the huge majority of gas victims as suffering from only “minor” injuries. In its curative plea, the Union of India prayed for another $8.1 billion (Rs 7,844 crore) over and above the $470 million already paid in a settlement in 1989 by UCC (now owned by Dow Chemicals Company). The order of Justice is S. K. Kaul is ridden with factual errors, which is yet to be rectified.  

One checked for use of the phrase "blood money" in Merriam-Webster Dictionary. It says, "The blood money earned by people who profited from the tragedy." The corporate criminals survive on blood money.
Shakespeare has immoralised the fate of unjust people nin his Macbeth. Lady Macbeth notices, "Hell is murky," and observes, "Yet who would have thought the old man to have had so much blood in him? Here's the smell of blood still. All the perfumes of Arabia will not sweeten this little hand". Judges and lawyers are judged even after the delivery of judgements. The cry of the victims of preventable disasters resonates even after the departure of judges like Pathak and lawyers like Nariman after performing their professional roles and having earned their share laurels.            

The author is a law and philosophy researcher and a lawyer. He is an ex-Fellow of Berlin based International Research on Authoritarianism and Counter Strategies (IRGAC).

Constitution Bench to pronounce judgement in Electoral Bonds Scheme (EBS) case, submissions in the Supreme Court

Written By mediavigil on Wednesday, February 14, 2024 | 9:50 AM

The Constitution Bench of Supreme Court comprising the Chief Justice, and Justices Sanjiv Khanna, B.R. Gavai, J.B. Pardiwala and Manoj Misra will pronounce the judgment in Writ Petition (Civil) No. 880 of 2017 etc. in Chief Justice’s Court at 10.30 a.m. on February 15, 2024. Besides Association for Democratic Reforms (ADR), CPI (M), Spanadan Biswal and Dr. Jaya Thakur are petitioners in the Electoral Bond Scheme (EBS) case. All the petitions are tagged together. Originally, Writ Petition (Civil) No. 333/2015 of ADR and Indian National Congress- SLP (Civil) No.18190/2014 was tagged with the ADR's new petition on October 3, 2017 by Supreme Court's 3-judge bench of Chief Justice and Justices Hima Kohli and J.B. Pardiwala. Jaya Thakur's petition was tagged with it on November 22, 2022. 

Earlier, Indian National Congress was "instructed to withdraw these petitions" on November 29, 2016 by Justices Jagdish Singh Khehar, Arun Mishra A.M. Khanwilkar. It was "Dismissed as withdrawn". Prior to this the petitioner had sought "an adjournment, so as to enable him to obtain instructions about the effect of the amendment to the provisions of the Foreign Contribution (Regulation) Act, 1976" on November 22, 2016. 

Notably, ADR had pursued a similar case [Writ Petition (Civil) 131 of 2013] in Delhi High Court from 2013 till October 9, 2017. ADR and E.A.S. Sarma, ex-Finance Secretary had filed this case. The court had pronounced its judgement on February 28, 2014 directing the Home Ministry to take appropriate action within 6 months, against the political parties for violating the Foreign Contributions (Regulation) Act (FCRA), 1976 and FCRA, 2010. The Court found that BJP and Congress had accepted donations from foreign sources year after year, in violation of provisions of FCRA, 1976 and FCRA, 2010. Both BJP and Congress chose to contest the judgement before Supreme Court (SLP No 18190/2014) and during the proceedings before the Supreme Court, following detailed arguments on our behalf, the two political parties withdrew their SLPs. In this backdrop, they withdrew their petitions. It is recorded in the Court’s order dated November 29, 2016. 

In his letter to Rajiv Gauba, Cabinet Secretary wrote, “In the normal course, if the government had any respect for maintaining the integrity of the electoral process, it would have immediately proceeded to take action against the political parties including BJP, for violating the FCRA, especially in view of the fact that foreign donations to political parties can hurt the sanctity of our democracy, much more than in the case of anyone else receiving such donations." But “Instead of this, the present NDA government quickly took the extraordinary step of retrospectively altering the laws that stood in the way of foreign donations flowing into the bank accounts of the political parties.” These amendments enabled changes to the Finance Acts of 2016 and 2017 and the Companies Act, 2013 to enable private companies to make unlimited donation to political parties. He wrote,  “It is bizarre that an ordinary citizen has to comply with all kinds of cumbersome Know-Your-Customer (KYC) requirements for a meagre account opened in a bank but the political parties should go scot-free when they blissfully receive thousands of crores of rupees without having to answer anyone!” He added, “While we have separately contested the propriety of the government retrospectively amending the two FCRA legislations, prima facie, there is no ethical justification for legalising an offence already committed by a political party under the FCRA and for condoning foreign donations to be received in the future, as by whatever name one may call it, foreign funding of elections is unacceptable." He asked, "“Why should companies, especially, foreign companies, give donations to political parties? Certainly not for promoting democracy, but more for quid pro quos from a willing political executive to enable them to profiteer, at the cost of the public.” He concluded that “Foreign donations to political parties are a threat to India’s democracy.”

It is in this backdrop, that the petitions of ADR  and others were mentioned in the Supreme Court on October 16, 2023. A 3-judge bench of Chief Justice and Justices J.B. Pardiwala and Manoj Misra passed an order saying "In view of the importance of the issue which is raised and having due regard to the provisions of Article 145(3) of the Constitution, we are of the considered view that the batch of petitions be listed before a Bench of at least five-Judges." 

A 5-judge bench partly heard the matter on October 31, 2023 and on November 1, 2023. On November 2, 2023, arguments were concluded and judgment was reserved. 

The Court's order dated Novemver 2 reads: "We have heard Mr Prashant Bhushan, learned counsel, Mr Kapil Sibal, learned senior counsel, Mr Shadan Farasat and Mr Nizam Pasha, learned counsel, appearing on behalf of the petitioners. Mr Vijay Hansaria, Mr Sanjay R Hegde, learned senior counsel, and Mr P B Suresh, learned counsel, appearing on behalf of the intervenors, supported the petitioners. On behalf of the Union of India, we have heard Mr R Venkataramani, learned Attorney General for India and Mr Tushar Mehta, learned Solicitor General with Mr Kanu Agrawal, learned counsel. Submissions have been advanced on behalf of the Election Commission of India by Mr Amit Sharma, learned counsel. On 12 April 2019, an interim direction was issued by this Court to the Election Commission of India. The Election Commission of India has produced in a sealed packet data in terms of the interim order as of April 2019. The order of this Court was not restricted to the date on which it was pronounced. If there was any ambiguity, it was necessary for the Election Commission to seek a clarification from this Court. In any event, we now direct that the Election Commission shall produce up-to-date data until 30 September 2023 in terms of the interim directions which were issued on 12 April 2019. This exercise shall be carried out on or before 19 November 2023. Data in a sealed packet shall be handed over to the Registrar (Judicial) of this Court." The 19-page long interim order in the ADR case [Writ Petition (Civil) No.333/2015] was delivered by Chief of India headed bench comprising of Justices Deepak Gupta and Sanjiv Khanna.

Prior to this, a 3-judge bench of CJI S. A. Bobde, Justices A. S. Bopanna and V. Ramasubramanian had reiterated the interim order in a 20-page long order dated March 26, 2021. Originally, the petitioners had prayed for declaration of "(i) Section 135 of the Finance Act 2017 and the corresponding amendment carried out in Section 31 of the Reserve Bank of India Act, 1934, (ii) Section 137 of the Finance Act, 2017, and the corresponding amendment carried out in Section 29C of the Representation of the People Act, 1951 (iii) Section 11 of the Finance Act, 2017 and the corresponding amendment carried out in Section 13A, the Income Tax Act, 1961 (iv) Section 154 of the Finance Act, 2017 and the corresponding amendment carried out in Section 182 of the Companies Act, 2013 and (v) Section 236 of Finance Act, 2016 and the corresponding amendment carried out in Section 2(1)(j)(vi) of the Foreign Regulations Contribution Act, 2010 as being unconstitutional, illegal and void." The 3-judge bench did "not see any justification for the grant of stay" on Electoral Bond Scheme. Hence, two applications of ADR and Common Cause-Interlocutory Application No. 183625 of 2019 and Interlocutory Application No. 36653 of 2021 in ADR case [Writ Petition (Civil) No. 880 of 2027)] seeking stay Electoral Bond Scheme were dismissed. 

In compliance with the Court's order dated November 2, 2023, the  Election Commission of India wrote a letter dated November 3, 2023 to all Chief Electoral Officers of all States and Union Territories on the Subject of "Submission of details in respect of Electoral Bonds".

Excerpts from submissions in Supreme Court in Electoral Bonds Scheme (EBS) case in Dr. Jaya Thakur v. Union of India. 

This petition was filed on October 18, 2022 and registered as Writ Petition (Civil) No. 975 of 2022 on November 5, 2022. It was verified on November 17, 2022.  The 45-page long written submission on behalf of Kapil Sibal, Senior Advocate for Dr, Jaya Thakur, the petitioner challenges the Electoral Bonds Scheme of 2018 (as amended in 2022), issued by the Department of Economic Affairs, Ministry of Finance, by way of Notification No. S.O. (E) 29/2018 dated January 2, 2018, in purported exercise of power under the Finance Acts of 2016 and 2017.

The petition concludes that regulation of spending in elections is a delicate process that necessarily must take into account the following factors:
a. Elections need funding.
b. Individuals ought to have the freedom to contribute to political candidates or issues of their choice.

However, excessive funding corrupts the political process in at least two ways.
a. It gives rise to a “pay for play” political culture where wealthy corporations or persons pay high amounts in order to influence the political process in a way so as to ensure that they obtain the “gratitude” of the powerful which is often expressed in the form of policies and laws that favour these donors over others. A political system where the rich have unhindered access to power leads to cynicism among the other persons and a corresponding lack of faith in the fairness of the democratic process. Public faith in democracy is what is ultimately the final line of defence for a democratic system. The perception of a “quid pro quo” often spells the death knell for public faith in the system.
b. Public policy is dictated by the desires of a few over the needs of the many. This leads to laws that serve private or public interests, and which favour the priorities of a few over everyone else.

Keeping in mind these dangers, India, before the EBS scheme, carefully regulated political donations in the following manner:
a. An elaborate system of disclosure was prescribed. First, Political parties were to give the data of the donations received to both the EC and the Income Tax authorities. Second, Companies that made political donations were required to disclose political contributions in their profit and loss statements. Thus, the public had the opportunity to find out how candidates were raising funds and could exercise their vote keeping this in mind.
b. In order to ensure that shell companies are not set up to fund political parties, companies could donate only up to 7.5% of their profits.
c. Political parties were forbidden from obtaining foreign funds under the FCRA.

It is the wanton destruction of this carefully calibrated structure by the EBS scheme that is under challenge in the present petitions.

The removal of restrictions on corporate funding- i.e. the 7.5% of profit cap that was imposed under the Companies Act, violates Article 19(1)(a) insofar as it permits deep pocketed companies to flood out the voice of citizens who do not have access to such funds. It also violates the “equal treatment” clause as it permits some people more political access than others based on money power.

The removal of the transparency and disclosure requirements violates the rights of citizens to know the candidates, their antecedents and their big money associations which are valuable to those seeking to exercise their ballots. This is in violation of rights under Article 19(1)(a), and 19(1)(c). Further, it utterly destroys the ability of shareholders to influence the political activities of companies. The Boards decide on donations and the profit and loss statement only records political donations and not to whom they were made. As such, shareholders have been denied complete agencies on how companies owned by them act politically. This is in violation of Article 300A of the Constitution.

The 23-page long rejoinder submissions in response to the respondent’s written submission which was tendered on October 31,2023 was filed on behalf of Kapil Sibal in Writ Petition (Civil) No. 975 of 2022. It was drafted by Gautam Bhatia, Rupali Samuel, Aparajita Jamwal, Rishabh Parikh and  Prasanna S. The respondent, the union government does not deny that the EBS infringes upon the voters’ right to information. It argues that the EBS strikes a “balance” between free and fair elections (powered by clean money), and the right to information. 

The rejoinder submits that the EBS is an executive instrument that deals with political party funding, and, therefore, indisputably, with entities that participate in the electoral process. It submitted that this Court ought to subject legislation that affects or alters the rules relating  to the electoral process (including election funding) to heightened and  anxious scrutiny. The impugned amendments brought in
through the Finance Act, 2017 and the Electoral Bonds scheme ought not to be accorded a presumption of constitutionality. The EBS bears no rational nexus to either election funding or clean money. This lack of
nexus was conceded by the Solicitor General in his arguments, who stated that the bonds are not related to elections and can be used for any activities by the party. Thus, the EBS only enables the enrichment
of political parties, without any transparency and accountability.

The term “electoral bond” is a complete misnomer. Payments made to political parties through these bonds are not at all related to election funding. The window for purchase of the bonds opens four times a year regardless of any election. he operation of the Current Account in which the electoral bonds are encashed by political parties is not restricted or regulated or monitored in any way. Spending from these accounts is not legally required to be linked to the conduct of elections. 

It is unfounded and disingenuous to suggest that confidentiality of donors is the only incentive for resorting to black  money in politics. Corruption is well documented as an endemic problem in politics in India, with politicians obtaining kickbacks in exchange for government favours. Thus, when analysed from the perspective of moral and societal harm, the problem of black money in politics arises from the use to which money is put (such as, for example, a quid pro quo between a donor and a politician). Under the EBS, at best, the aspect of transfer of money could be said to be brought into the banking stream (and that too, only in those cases of direct donation by the original purchaser of the bond), but even so, the use of money for an immoral and societally harmful purpose is not prevented or deterred. Indeed, the legitimising of the means of transfer of such money through an anonymous bearer bond only makes it more difficult to discover that the illegitimate use of money has occurred, even when it is done in plain sight. In other words, the harm from corruption is not eliminated by offering legitimate channels for funnelling such money towards such illegitimate uses. For example, corruption in the form of a quid pro quo which was undertaken through cash payments remains harmful to society even when such payment for an undue favour is made through a bond, since the use of the money is for a harmful purpose.

As a matter of law, if those engaging in criminal activities and hence operating through cash enter the EBS system, then the EBS is abetting crimes by offering a non-transparent, legitimate channel for transfer of bribe money. The confidentiality granted by the EBS makes it impossible for regulators, investigators, opposition parties and the public to identify the existence of any quid pro quo since no correlations
between receipt of funds and government benefits can ever be discerned or red flagged in the first instance for further detailed examination. Conversely, if the EBS does not shield criminals, and the bribe masked as donations would render the donor/donee liable for criminal prosecution, then all such criminal actors continue to be incentivised to resort to black money. Thus, the EBS is no answer to preventing use of black money for criminal activity. The only deterrent to criminality is a robust and fair investigation agency coupled with a speedy and just criminal justice system.

The expenditure of a candidate in an election is capped by Section 77(3) of the Representation of the Peoples Act 1951 read with Rule 90 of the Conduct of Election Rules 1961. The present cap is either Rs 95 lakhs or Rs 75 lakhs per candidate for Parliamentary constituencies and Rs 40 lakhs or Rs 28 lakhs per candidate for state legislative assembly constituencies. Any spending above this limit is illegal and amounts to a corrupt practice under Section 123(6) of the Representation of the Peoples Act 1951. Therefore, such illegitimate and illegal utilisation of funds over and above the expenditure cap can never be done through open and lawful means. Those resorting to expenditure in excess of the cap would continue to use black money. 

The claim that the total cash circulating in the economy has fallen after the EBS is not factually correct. The RBI’s Annual Report for 2022-23 states that as of March 2023, the total currency circulating
in cash is worth Rs.33,48,228 crores. The RBI’s own official data shows that this number has been steadily increasing over the last six years. Source: RBI Annual Reports dated 2019-20 and 2022-23 at https://rbidocs.rbi.org.in/rdocs/AnnualReport/PDFs/8CURRENCYMANAGEMENT31110531A057411F9EADC90842596B4B.PDF and https://rbidocs.rbi.org.in/rdocs/AnnualReport/PDFs/0RBIAR201920DA64F97C6E7B48848E6DEA06D531BADF.PDF 

The EBS does not tackle the problem of black money. Consequently, the issue of “confidentiality” in order to ensure clean money in election funding does not arise. 

The confidentiality under the EBS remains an asymmetric, or partial confidentiality and cannot protect against reprisals. This is because, first, it is always possible for the ruling political party to discern broad
patterns of donation via electoral bonds: for example, the ruling party will know how much it has received from a particular corporate donor; it will also know the “total” of how much that donor has donated via
electoral bonds under the disclosure in its books of accounts required by Section 182 of the Companies Act, 2013. Thus, if the total donations disclosed by the corporate donor exceeds the amount the party in
power has received, it will immediately know that the said corporate donor has patronised its political opponents. Consequently, the EBS does not solve the problem of “victimisation” and “reprisals” that the
Respondent expresses concern about; rather, it exacerbates it since corporates cannot resist demands made by ruling parties for donations under the EBS on the ground that these payments would expose them
to criminal liability. Secondly, the trigger for full disclosure under the EBS is the existence of a First Information Report (FIR), which is an extremely low threshold for the political Executive which has the
instruments of law and order at its disposal. Once again, information about donations - upon this trigger being met - will be to agencies or instrumentalities under control of the incumbent. During the course of
oral argument, the Learned Solicitor General invited this Court to “read down” this clause to add in the requirement of a court order; it is respectfully submitted that the impugned Scheme must stand or fall
on its own terms; it cannot be altered on the basis of concessions made across the bar.

Ever since the 1970s, it is well accepted that the test for a violation of fundamental rights - including
Article 14 - is the test of effect. The effect of the EBS - both structurally and empirically - is an undue pro-incumbent benefit; this, it is submitted, should attract this Court’s anxious scrutiny, as one of the surest signs of democratic decay is when legal regimes are designed in a manner so as to concentrate greater economic or political power within incumbents, and thus impede the periodic transfer of power that marks all healthy democracies.

The asymmetric confidentiality incorporated by design into the scheme of the EBS has a spin-off harm, in that it keeps the political opposition as well as the voter in the dark about donations to the ruling party, and whether those donations have (or have not) reflected in policy outcomes. This prevents open debate, since the lack for information precludes lawful critique or questions about potential crony capitalism, and further undermines the democratic public sphere.

Even if the Respondent’s arguments about confidentiality are to be accepted, the EBS fails to pass the test of proportionality. The threats of victimisation or harassment can be dealt with on a case-by-case basis, rather than through a blanket denial of the voter’s right to know. Respondent has failed to engage with this argument.

The EBS clearly fails the final prong of the proportionality standard. While denying any possibility of favour as a result of donations, it presumes the fact of disfavour and invokes the possibility of victimisation (which, it may be stated, assumes the failure or partisanship of the State, the investigative
agencies, and the courts), which may be suffered by an indeterminate set of big-money political donors, as a justification for denying every voter the right to know who funds political parties. This is not, under
any circumstances, a constitutionally compliant “balancing of interests” under the proportionality standard.

The EBS grants a privilege to corporations to make unlimited and anonymised contributions to political parties without any oversight whether externally by regulators or internally by the requirement for shareholder approval. By way of the EBS, a corporate entity is permitted to (i) be equated with a citizen of India; (ii) interfere and influence with the electoral process; (iii) give unlimited funding, irrespective of its profitability, thereby permitting the Board of Directors to forego their fiduciary duty towards its shareholders and (iv) hide from the shareholders as to which political party the Company has given
funding to. The Solicitor General has already conceded in his oral arguments that to the extent that the present scheme allows a company that does not even make profits to make donations, it may be struck
down. This all-encompassing privilege cannot be justified on the single plank of “donor privacy.”

The union government has argued that the amendment to the Reserve Bank of India Act, 1934 was to only facilitate the issuance of bearer bonds by the State Bank of India. However, the amendment made to sub-section 3 of Section 31 of the Reserve Bank of India Act, 1934 grants power to the Central Government to
“authorise any scheduled bank to issue an electoral bond” without requiring any RBI approval. Further, this amended provision does not set out any legislative policy for the exercise of this power and amounts
to excessive delegation which is unconstitutional. The contours of the scheme are thus not legislatively set out, but are within the domain of the Executive to frame. The EBS was notified on 02.01.2018 in
purported pursuance of power under sub-section 3 of Section 31 of the Act by the mere issuance of a notification by the Ministry of Finance. Similarly, the EBS was amended on 07.11.2022 to allow a 15 day window of purchase to be notified before elections to state legislative assemblies by the mere issuance of a notification by the Ministry of Finance, without RBI needing to give any approval.

It concluded that the EBS, and the legislative amendments that enable it, are violative of the Constitution and this Court may be pleased to strike them down as unconstitutional. 

Oral Arguments 

Introduction of the Scheme of Electoral Bond

European and Indian farmer protests, common issues: Soma Marla

Farm distress experienced by small farmers in India and was genuinely mirrored in the year-long Kisan struggle against the pro-corporate three farm laws brought by Indian government. Both small farmers and working class in India identified big corporate bourgeoisie as common class enemy and are waging relentless struggles untimely for the last three years. They are demanding legal guarantee for purchase of crop produce, regulation of soaring prices and increase government (public) expenditure in agriculture. The proposed Bharat Bandh on February 16th, 2024 is called by United Farmers group (SKMU) and Central Trade unions. An expected participation of nearly 20 crore (200 million) toilers and likely to bring the nation to a standstill. (Photo:Soma Marla)

In 2020, while introducing three farm bills, Indian Prime Minister had declared that free markets (replacing state market yards) with participation of major corporate houses would promote competition and there by benefit farmers with profitable prices If de-regulating agricultural markets and bringing corporate control over agriculture were a viable alternative, there is no reason why European farmers today are agitating against big agri corporations. 

Farmers are protesting all across the Europe. Their major demand being is primarily against denial of an assured and rightful price for their produce. Farmers virtually blocked all seven motorways leading to Paris with thousands of tractors and are camped outside the city. Beginning in France, the protests soon spread over to Germany, where enraged farmers paralysed half of Berlin. The farm stir has also spread to Romania, the Netherlands, Poland, Lithuania, Romania, Bulgaria and Belgium. Farmers in Spain, Italy and Greece are preparing to organize huge rallies. Some young farmers were seen spraying farm manure and cow dung on government buildings and at some busy thoroughfares old tyres and agricultural waste set to fire, besides stopping vehicles carrying imported foodstuff and dumping it on the streets. While Paris supermarket shelves are getting empty of fresh farm produce, shopping mothers find it hard to answer to the questions rised by accompanying children. These European protests remind the protesting Indian farmers camping in the outskirts and blocking the highways leading to Delhi a few years back. I find similarities between the two agitations.

In Europe farmers are being burdened by huge debts, squeezed by powerful retailers and agrochemical companies, battered by extreme weather, and undercut by cheap foreign imports. In Poland cheap imports of grain has brought the grain prices down by 30 percent. Adding fuel to farmers stir is decision by governments of France and Germany to withdraw diesel subsidies and increase insurance charges to farm machinery. The unwise sanctions on oil and gas imports from Russia also contributed to high levels of inflation and energy crisis. The root of farm crisis lies in low prices of farm produce in markets and left to the mercy of big agribusiness cartels and corporate houses. Ironically, European Unionshielded by Green box, masks the WTO guidelines and subsidizes up to nearly 60 to 70 percent of production costs to their farmers. European Union provides huge support of $107 billion per year ( EU, 20-22 ) and European farmers, are among the highest recipient of subsidies and direct income support. However, 80 percent of this goes to mere 20 percent of rich farmers and seed, agrochemical firms leaving bulk of the small farmers to content with penury.

The protests are primarily against denial of an assured and rightful price to farmers. In European Union a small farmer receives mere 27 percent of what a consumer pays for farm products in a supermarket (Nature Food, 2021). In India too a farmer gets just 27 to 31 paisa on every rupee of purchase by a consumer in a supermarket or a local Kirana store. A lions share being pocketed by the value chain starting from local grain merchant to super market or big agribusiness corporate house.

In beginning of XIXth century, Karl Kautsky opined that farm products are kept low valued in markets against industrial goods artificially in markets so as to drain the surplus in favour of metropolitan industry. It is estimated that of the total agricultural GDP of 22 Lakh crore rupees, an Indian farmer is loosing nearly 15 Lakh crore rupees to intermediate grain retailers and big corporate agribusiness and supermarket chains.

The grip of global agribusiness corporations is so strong that nearly 40 percent of seed market is controlled by BASF SE, BAYER, Corteva Agro, Syngenta and others, while a mere three agribusiness giants viz.. Cargill, ADM and ZenNoh control nearly 50 percent of global grain supplies. Similarly a handful of companies like John Deer, New Holland control 90 percent sale of global tractors, harvest combines and other machinery. It is suspected that the gory food crisis witnessed in Egypt, Burkina Faso, Tunisia, Indonesia and other countries was nothing but created by these global grain cartels for big profits.

It is crystal clear by now that liberalised markets have failed to enhance farm incomes. It shows that the tailored economic reforms are being implemented to benefit big agribusiness on the expense of small farmers. Hence, Indian farmers (SKMU) and major Trade unions are waging for the last three years a relentless struggle against corporate control of agriculture, markets and denial to cheap food to a vast majority of toiling masses. 

On February 16th  these two bodies have called for Gramin Bandh, a nation wide village strike demanding a law for guaranteed purchase of agricultural produce at higher price and regulate rising food prices.

European and Indian farmers alike are agitating against low prices and big agribusiness corporate controls. This mirrors ongoing global struggle by toilers against finance imperialism.

(Author: Dr. Soma Marla, Principal Scientist (Genomics), retd, Indian Council for Agricultural Research, New Delhi)

Courtesy: Mainstream

Social justice and the voice of the subaltern (Seemant): Prof. Ramesh Chandra Sinha

Written By mediavigil on Sunday, February 11, 2024 | 1:24 AM

Excerpts from the lecture on Social justice and the voice of the subaltern (Seemant)

The term Seemant requires explanation especially in its relations with social justice. Those who are on the margin are known as Seemant. They are besides the main structure of the society. In one sense we can say that Seemant is different from proletariat. Proletariat is an economic expression stipulated by Karl Marx where as Seemant is a cultural concept. Even the economically well-off people can be called Seemant because they do not have share in decision making either his/her own family.

Relating to the question of Seemant I would like to refer one article entitled ‘Can the Subaltern Speak?’ written by Gayatri Chakravorty Spivak. In this article she contends that subaltern cannot speak. She gives an example of Sati-pratha practice in India. My contention is that with the passage of time we find that subaltern can speak. The demand of social Justice is that subaltern should raise their voice for fair share in the power structure. A group of historians led by Prof. Ranjit Guha and Gayatri Chakravorty Spivak started the Subaltern studies group. Being a subaltern historian, their treatment was descriptive. They were concerned with the events and they have given description of the historical facts and figures. By the subaltern they mean common man. And they contend that history should be written  from the common man’s point of view. 

But my approach different. It is neither ther descriptive nor historical. It is conceptual and logical. The term "subaltern" was used by the Greek philosopher Aristotle. I have used this term in the field of ethics and my approach is conceptual. I have written an article entitled Anya Ki Naitikta or "The Ethics of others". So, the "other" stands for those on the margin.

Later on, one evening I was roaming on the college street, Kolkata. There were heaps books on that street. All of a sudden, I picked up a book entitled Seemantako ke Anveshak: Shyamacharan Dubey edited by Sudhish pachauri and Dr. Leela Dubey. This title struck me and I shifted from Anya to "Seemant. The expression Seemant explains the depth of my concept of morality of others. So, Seemant includes the people those who are marginalised. Generally, there is a misconception that subaltern is a Marxist expression, first used by  Antonio Gramsci to indicate the people of inferior rank. But I contend that this is a logical expression stipulated by Greek philosopher Aristotle while explaining the relation of opposition of proposition. Aristotle also known as the father of logic. The term "subaltern” in Aristotelian logic denotes the relationship between two propositions. The proposition is subaltern to another if it is implied but does not imply. In this relationship, if the universal proposition is true then particular must be true but not vice versa. It means universal implies particular but particular does not imply universal. So, subaltern is implied but does not imply any other proposition. In this relationship, two propositions can be true together and also false together. Subalternation is the relation between two propositions having the same subject and the predicate but differing in quantity and not in quality. Resistance to the elite class and emancipation of subordinate class may be considered as subaltern social justice.

Seemant consciousness is concerned with the justice to subordinate or deprived people. The subaltern justice postulates that subaltern communities are not entirely controlled by the dominant communities. The Seemant naitikata attempts to redefine moral behaviour. It inculcates people those who are deprived due to caste, colour, gender and even poor economic status. So, those people who are: marginalized hey need fair share in the society. Social justice anticipates that the marginalized should get their due. In Indian society, hierarchical caste happens to be the root cause of exploitation and discrimination. This breeds inequality in society.

Social justice mitigates discrimination. The concept of social justice comprises components, one is equal rights, the other is equal opportunities and third one is equal treatment to the members of society. Here, I would like to contend that by social justice I mean distributive justice. By distributive justice I mean social capital should be distributed equally. Social capital comprises economic goods and cultural values. In ordinary parlance, by social justice we mean equal distribution.

Equal justice is fraught with certain flaws: For instance. we decide to distribute milk equally to A, B and C. Apparently, equal distribution meets the primary condition of social justice. But when a philosopher probes deeper in the concept of this sort of explanation, he/she will realize that its serious limitations. We can illustrate this by giving one concrete example. If we distribute the milk in equal quantity to A, B, and C, ordinarily it meets the criteria of social justice. Let us examine it with another concrete example. A is a wrestler, B is an infant and C is a diabetic  person. If we distribute the milk equally to of these three, actually we are not going to do justice. If the wrestler gets one glass of milk he/she will be starving. If the baby gets one glass of milk, he/she will be over fed and if a diabetic person gets equal amount, then he/she will be suffering.  So, the criteria of equal distribution do not meet the condition of social justice. The equitable distribution implies that one should get their share according to their requirement, which is the true menaing of social justice.

The present paper takes seriously the specific manner by which the institution and ideology of caste engenders a contextual manifestation of Seemant, which is intrinsically tied-up to social justice in India. The Seemant, thus are the communities that are cumulatively and comprehensively disadvantaged and subordinated. The words of Partha Chatterjee are relevant here: "...no matter how we choose to characterize it, subaltern consciousness in specific cultural context of India  cannot but contain caste as a central element in its Constitution."

Let us understand the social relation in a logical way as conceived by Aristotle in his relation of proposition. In society some people are marginalised economically as well as culturally. There is a dominant group of people who are well off economically and are also occupying higher strata in society. In view of the Aristotelian logic, the relation of universal affirmative and particular affirmative is the relation of subaltern. The upper class and the subordinate class may be symbolized as A and I. A stand for upper class and I stands for subordinate class. A implies I, but I do not imply A. If A is true, I must be true but not vice versa.                                     

This relation is best exemplified in the following excerpts from The German Ideology authored by Marx and Engels: "The idea s of the ruling class are in every epoch the ruling ideas, i.e. the class which is the ruling material force of society, is at the same time its ruling intellectual force. The class which has the means of material production at its disposal, has control at the same time over the means of mental production, so that thereby, generally speaking, the ideas of those who lack the means of mental production are subject to it."

The emerging school of "Cultural Marxism” seems more relevant framework within which to interpret subaltern social justice as encountered by Ambedkar. This complex interweaving of domination and subordination, on the one hand, and compliance and resistance, on the other is capable of realistically holding together the camouflage of submissiveness, which characterises the overt behaviour of subaltern class. Seemant people are deconstructing the old structure and and itching to come in the centre of the power. The idioms of domination, subordination and revolt, are often inextricably linked together. If this is true, it follows that subordination and domination is seldom complete. The process is marked by struggle and resistance. 

 Prof. Ramesh Chandra Sinha is former Chairman, Indian Council of Philosophical Research, New Delhi and former Professor & Head, Department of Philosophy, Patna University.  His lecture was delivered on May 15, 2023.

Vladimir Putin's responds to Tucker Carlson

Written By mediavigil on Friday, February 09, 2024 | 3:01 AM

TRANSCRIPTS OF VLADIMIR PUTIN'S RESPONSES TO TUCKER CARLSON'S QUESTIONS: U.S. TRYING TO WEAKEN RUSSIA BUT IS MORE SCARED OF CHINA “The West is more afraid of strong China than it fears a strong Russia, because Russia has 150 million people, and China has 1.5 billion population - and its economy is growing by leaps and bounds, or 5% a year; it used to be even more, but that's enough. “For China, as Bismark once put it, potentials are the most important: China's potential is enormous. "It is the biggest economy in the world today in terms of purchasing power parity, and in the size of the economy it has already overtaken the United States quite a long time ago, and it is growing at a rapid clip.” YOU TRICKED US “Let's not talk about who is afraid of whom. Let's not reason in such terms. And let's get into the fact that after 1991, when Russia expected that it would be welcomed into the brotherly family of civilized nations, nothing like this happened. “You tricked us. I don't mean you personally. When I say ‘you’ of course I'm talking about the United States. “The promise was that NATO would not expand eastward but it happened five times. There were five waves of expansion. “We tolerated all that. We were trying to persuade them, we were saying: Please don't. We are as bourgeois now as you are! We are a market economy and there is no Communist Party power. 

WEAPONIZING DOLLAR IS MASSIVE ERROR “You know, to use the dollar as a tool of foreign policy struggle is one of the biggest strategic mistakes made by the US political leadership […] “I would not like to use any strong language but it is a stupid thing to do and a grave mistake. “Look at what is going on in the world: Even the United States' allies are now downsizing their dollar reserves. Seeing this, everyone starts looking for ways to protect themselves. But the fact that the United States applies restrictive measures to certain countries such as placing restrictions on transactions, freezing assets, etc., causes great concern and sends a signal to the whole world. “What did we have here [in Russia]? Until 2022, about 80% of Russian foreign trade transactions were made in US Dollars and Euros. US Dollars accounted for approximately 50% of our transactions with third countries, while currently it is down to 13%. “It wasn't us who banned the use of the US dollar. We had no such intention. It was the decision of the United States to restrict our transactions in US Dollars. “I think it is complete foolishness from the point of view of the interests of the United States itself and its taxpayers, as it damages the US economy, undermines the power of the United States across the world." 

CHINESE YUAN IS RISING “By the way, our transactions in Yuan accounted for about 3% [in the past]. Today 34% of our transactions are made in Rubles and about as much, a little over 34%, in Yuan. “Why did the United States do this? My only guess is self-conceit. they probably thought it would lead to full collapse. But nothing collapsed. “Moreover, other countries including oil producers are thinking of and already accepting payments for oil in Yuan. “Do you even realize what is going on or not? does anyone in United States realize this? What are you doing? You are cutting yourself off. All experts say this. Ask any intelligent and thinking person in the United States what the dollar means for the US. You're killing it with your own hands.” CHINA IS UNFAIRLY DEMONIZED “We have heard those Bogyman stories [about China] before. It is a Bogyman story. “We're neighbors with China. You cannot choose neighbors. Just as you cannot choose close relatives. We share a border of a thousand kilometers with them: this is number one. “Second, we have a centuries-long history of co-existence. We're used to it. “Third, China's foreign policy philosophy is not aggressive. Its idea is to always look for compromise and we can see that. “The next point is as follows: we are always told the same Bogeyman story and here it goes again, through a euphemistic form. But it is still the same Bogyman story." 

PEOPLE ARE CO-OPERATING MORE WITH CHINA “The cooperation with China keeps increasing. The pace at which China's cooperation with Europe is growing, is higher and greater than that of the growth of Chinese-Russian cooperation. “Ask Europeans: Aren't they afraid? They might be. I don't know. “But they are still trying to access China's market at all costs, especially now that they are facing economic problems. Chinese businesses are also exploring the European market.” U.S. IS HURTING ITSELF “Do Chinese businesses have a small presence in the United States? Yes. “The political decisions are such that they are trying to limit their cooperation with China. “It is to your own detriment, Mr Tucker, that you are limiting cooperation with China. “You're hurting yourself. It is a delicate matter and there are no Silver Bullet solutions, just as it is with the dollar. “So before introducing any illegitimate sanctions, illegitimate in terms of the charter of the United Nations, one should think very carefully. For decision makers this appears to be a problem.” 

PEACEFUL TRADE “We, together with my colleague and friend, President Xi Jinping, set a goal to reach $200 billion of mutual trade with China this year. We have exceeded this level according to our figures. “Our bilateral trade with China totals already $230 billion and the Chinese statistics says it is $240 billion. “One more important thing: our trade is well balanced, mutually complimentary in hitech and energy, scientific research and development: it is very balanced.” YOU CAN’T STOP THE SUN RISING “As for BRICS, where Russia took over the presidency this year, the BRICS countries are, by and large, developing very rapidly. “Look: if memory serves me right, back in 1992, the share of the G-7 countries in the world economy amounted to 47%, whereas in 2022 it was down to I think a little over 30 %. The BRICS countries accounted for only 16% in 1992 but now their share is greater than that of the G7. It has nothing to do with the events in Ukraine. This is due to the trends of global development and the world economy, as I mentioned just now. “And this is inevitable. This will keep happening. It is like the rise of the sun: you cannot prevent the sun from rising. You have to adapt to it.” US RESPONDS BY LASHING OUT “How does the United States adapt? With the help of force, sanctions, pressure, bombings, and use of armed forces! “This is about self-conceit. Your political establishment does not understand that the world is changing, under objective circumstances, and in order to preserve your level, even if someone aspires to the level of dominance, you have to make the right decisions in a competent and timely manner. “Such brutal actions, including with regard to Russia, and say other countries, are counterproductive. This is an obvious fact.” 

(This are extracts from an interview of Vladimir Putin by Tucker Carlson, released on February 8, 2024)

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