Selected Articles from Various News Paper: Civil Services Mentor Magazine June 2014

Selected Articles from Various Newspapers & Journals

(June 2014)

Nalanda is not about nostalgia

It is only appropriate that a government that is actively seeking overseas collaboration in the arena of higher education should be steadfast in its support for an inclusive and ambitious model of global partnership. The Union Cabinet’s approval of the amendments proposed by a Standing Committee on External Affairs should settle once and for all the question of the status of Nalanda University — at Rajgir in Bihar — as an international institution. As per the proposed amendments, the preamble to the 2010 Act would characterise Nalanda unambiguously as “a non-state, non-profit, self-governing international institution.” Such a stipulation should put an end to attempts to depict the modern avatar of the historic centre of learning as a central university, thus saving the government the embarrassment of having to clarify its position to other participant-countries in this unique project. Indeed, the Standing Committee has proposed the insertion of a clear reference in the relevant law to the 2013 intergovernmental memorandum of understanding that has entered into force. Significantly, the latter provides for the involvement of any country that subscribes to the objectives of Nalanda. Russia, the United States, Australia and New Zealand have already expressed their commitment at various levels.

The transnational composition of the modern Nalanda was only to be expected. For the states of the second East Asia Summit (EAS) in 2007 saw the revival of this ancient seat of learning as being central to realising the concept of an Asian community and strengthening regional educational cooperation. A capacity to attract students and faculty from across geographical boundaries was one of the hallmarks of this great and ancient seat of learning. It would have therefore seemed rather odd for the architects of Nalanda’s new version appearing not keen to foster a cross-cultural and cosmopolitan spirit of intellectual and cultural exchange. In the context of the relatively backward State of Bihar, the creation of state-of-the-art infrastructure and improved overall connectivity would prove an immense boon. The University’s Chancellor, the Nobel laureate Amartya Sen, has repeatedly emphasised his commitment to promoting the highest academic standards, as well as ensuring equity in the recruitment and admissions processes. These are worthy objectives that India’s public institutions generally, and those in the field of education in particular, must foster at every level. If indeed the 21st century is critical to the future of Asia, then Nalanda is potentially a great platform to create that future. It could prove no less a model for the promotion of international understanding.

The new Cold War

The March 16 referendum on whether the southeastern Ukrainian province of Crimea should unite with Russia or have greater autonomy within Ukraine has presented the United States and the European Union with their most severe political test in decades. On available figures, almost 97 per cent of those who voted favoured unification with Russia; the option of the status quo was not offered, and the Crimean government, headed by Sergey Aksyonov, promptly voted to approve the plan. In the Ukrainian capital Kiev, interim Prime Minister Oleksandr Turchynov rejected the referendum as unconstitutional, but he was powerless to prevent it. The proximate cause of the referendum was the then Ukrainian President Viktor Yanukovych’s unannounced departure from office on February 22, following weeks of public protests – and a violent government crackdown — over revelations of his corruption and his abrogation of an association agreement with the EU, which may well have led to Ukraine’s joining the EU in due course. In response, Russia, which had offered Kiev a €15-billion aid package and retains a naval base at Sevastopol in Crimea, sent troops into the 58 per cent ethnic-Russian province, where Mr. Aksyonov had already been voted into the regional prime ministership while armed guards kept all but his own party out of the Assembly building in Simferopol.

Russian President Vladimir Putin considers Mr. Yanukovych the victim of a West-inspired coup d’état, but the issues are much wider. The EU deal would have involved Ukraine in IMF restructuring and much closer cooperation with NATO-dominated EU defence institutions. Moscow saw this as a threat, especially following the emergence of evidence that U.S. troops had helped prime Georgian weapons in the latter’s 2008 attempt to seize South Ossetia; Russian governments also recall the unilateral U.S. recognition of Kosovo in 2008, and Mr. Putin was incensed when plans emerged for Ukraine to join NATO. Moreover, ethnic Russians in Crimea were not consulted over then Soviet President Nikita Khruschev’s decision to hand over the province to Ukraine in 1954. Tensions within Ukraine were further exacerbated by Mr. Turchynov’s appointment of several far-right politicians to senior ministerial posts in Kiev, and by a new law ending the official status of the Russian language in Crimea. The U.S. and the EU are considering sanctions, such as visa bans and asset freezes, against Russian officials; the G7 countries have declared the Crimea referendum illegal, but no Western bloc may be able to stop the dismemberment of Ukraine and prevent the start of a new Cold War.

Friction over drug patents

Differences over intellectual property rights (IPRs) have emerged as a strong undercurrent in India’s economic relations with the U.S. The attempt by the influential pharmaceutical lobby to stymie India’s efforts to ensure the supply of medicines at affordable rates without violating existing treaty commitments, requires a principled response from New Delhi. At the core of the issue is what Columbia University Professor Arvind Panagariya calls “the hijacking of the economic policy dialogue between the U.S. and India by pharmaceutical lobbies in the U.S.” Piqued by India’s decision to use the flexibilities that are available in the existing TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement, big pharma in the U.S., along with other influential business groups, is using its considerable clout to pressure the U.S. Trade Representative into designating India as a “priority foreign country” in its 2014 Special 301 Report, due on April 30. That label is reserved for the worst offenders of IPRs, and as a follow-up the U.S. could impose trade sanctions such as withdrawing tariff preferences for Indian exports. In an election year, India will most likely retaliate through anti-dumping duties or tariff hikes on U.S. imports.

The genesis of this issue goes back to 1994 when at the Uruguay Round of trade talks India, while not being wholly successful in resisting U.S. attempts to have a 20-year product patent on medicines and chemicals, managed to incorporate certain flexibilities in the TRIPS agreement. However, since 2005 when India incorporated patent protection into domestic laws, it has used the flexibilities only twice. In March 2012, it issued a compulsory licence to an Indian firm for a cancer drug, whose patent-holder, the German multinational Bayer, had priced it well beyond the reach of a majority of Indian patients. Under another provision, countries have the option to deny a patent to a drug that involved only incremental innovation over an existing drug. In April 2013 the Supreme Court upheld the 2006 decision of the Indian patent office denying the Swiss multinational Novartis patent on a drug that involved only incremental innovation. Clearly, not just these two instances but the prospect of other countries emulating India has rattled big pharma. India, which has not violated the treaty obligations, can challenge any prospective action by the U.S. by taking it before the WTO, whose dispute settlement mechanism has a good record of impartiality. Developing countries as also a few developed ones expect India to act effectively to safeguard its domestic commitment to public health.

Final reprieve for Bhullar

The story of Devendar Pal Singh Bhullar is truly extraordinary. Condemned to death thrice in the past, he has now obtained a final reprieve from the Supreme Court, thanks to the humanitarian jurisprudence on clemency evolved by it in recent times. With the Court giving him the benefit of its January 21, 2014 verdict, the man convicted of killing nine persons and wounding 17 others in a car bomb attack in Delhi in 1993, will not be executed. His death sentence stands commuted to life on two grounds — that there was an unexplained delay of eight years in disposing of his mercy petition, and that he suffers from mental illness. The verdict was only to be expected, as both these grounds figure among the supervening circumstances for commutation listed by the Supreme Court in January in Shatrughan Chauhan vs Union of India. There were at least three days in Bhullar’s life that appeared to indicate that his fate was sealed: March 22, 2002, when the Supreme Court upheld the death sentence against him; June 13, 2011, when the President’s rejection of his mercy petition was communicated to the prison authorities; and April 12, 2013, when the Supreme Court upheld the President’s order. Rarely do cases get reopened after reaching finality in both the appellate and review jurisdictions of the Supreme Court. Yet, such was the scope of the relief envisioned in Shatrughan Chauhan that the Attorney General conceded that this death sentence was liable for commutation in the light of the principles enunciated in that verdict.

The question that arises now is whether there is any aspect of clemency, or constitutional limitation on imposing the irreversible penalty of death, that remains to be settled by the Supreme Court. One aspect that the Court will probably take note of some day in an appropriate case is whether difference of opinion among judges in the appellate court can be a ground for commutation. In Bhullar’s case, the death sentence imposed on him by the Designated Court was upheld by the Supreme Court by a majority of two judges to one. And the dissenting judge did not differ just on the sentence: he acquitted him, holding that the accused could not be convicted solely on the basis of a statement recorded by a police officer. While considering his review petition, the Bench was divided two-one on the effect of this difference of opinion, with the majority holding that one dissent could not be a ground to review the verdict. Questions on the irreversible harm caused by a possible doubtful or mistaken conviction will keep cropping up as long as the death penalty remains on the statute book, helping the judiciary fine-tune and humanise the body of law on death and mercy.

CAG scan of the private sector

The Supreme Court’s ruling that the Comptroller and Auditor General of India can audit private telecom firms that share their revenues with the government is a landmark one. The ruling has, at one stroke, extended the reach of the CAG from government and public sector companies to any entity that may be using a public resource in its business and sharing revenue with the government. The ostensible principle behind the ruling is that when the Executive deals with natural resources, such as spectrum, which belong to the people, Parliament should know how the nation’s wealth has been dealt with. The quantum of revenue generated from the resource has to be verified; whether the revenue has been properly accounted for by the government and the private licensee also needs to be ascertained. The principle behind the ruling is unexceptionable and gains resonance in the context of scams in spectrum and coal blocks allocations that were unearthed by the CAG. Politicians are not beyond colluding with private firms to extract rent from their control of public resources, and the latter have been happy to play along. The origins of the case that has led to the Supreme Court ruling lie in a dispute between a couple of telecom companies and the government over accounting of revenues, which is crucial to determining the licence fee payable to the government. The government suspected that the companies were accounting for revenues in a manner that would lower their fee liability.

The fact is that companies that use public resources have a responsibility to bear, and if they play true and fair they have nothing to fear from an audit, including one by the CAG. A CAG audit can be an irritant in the conduct of daily business as records need to be produced and queries answered, especially because this will be in addition to the statutory audit under the Companies Act. If governments and the CAG ensure that there is no harassment, there would be no cause to protest against the audit itself, as industry associations are now doing. After all, the ruling is a direct result of proven misdemeanour by some entities in recent times. That said, the challenge for the CAG will be in deploying adequate resources and talent in such audits when called upon by the government or the regulators. These need to be completed and the reports submitted in good time unlike traditional CAG audits of public sector entities that are invariably delayed. The government and the regulators should resort to CAG audits sparingly and only under exceptional circumstances where they suspect serious wrongdoing by a player. Turning to CAG audits routinely will only increase the regulatory burden and turn away private investors.

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