Planes, Pandemic and Medical Devices – I

The Great Electric Airplane Race

It took me quite sometime to write as have been depressed about things. Then a few days back saw Nova’s The Great Electric Airplane Race. While it was fabulous and a pleasure to see and know that there are more than 200 odd startups who are in the race of making an electric airplane which works and has FAA certification. I was disappointed though that there no coverage of any University projects.

From what little I know, almost all advanced materials which U.S. had made has been first researched in mostly Universities and when it is close to fruition then either spin-off as a startup or give to some commercial organization/venture to make it scalable and profitable. If they had, I am sure more people could be convinced to join sciences and engineering in college. I actually do want to come to this as part of both general medicine and vaccine development in U.S. but will come later. The idea that industry works alone should be discouraged, but that perhaps may require another article to articulate why I believe so.

Medical Device – Ventilators in India

Before the pandemic, probably most didn’t know what a ventilator is and was, at least I didn’t, although I probably used it during my somewhat brief hospital stay a couple of years ago. It entered into the Indian twitter lexicon more so in the second wave as the number of people who got infected became more and more and the ventilators which were serving them became less and less just due to sheer mismatch of numbers and requirements.

Rich countries donated/gifted ventilators to India on which GOI put GST of 28%. Apparently, they are a luxury item, just like my hearing aid.

Last week Delhi High Court passed a judgement that imposition of GST should not be on a gift like ventilators or oxygenators. The order can be found here. Even without reading the judgement the shout from the right was ‘judicial activism’ while after reading it is a good judgement which touches on several points. The first, in itself, stating the dichotomy that if a commercial organization wanted to import a ventilator or an oxygenator the IGST payable is nil while for an individual it is 12%. The State (here State refers to State Government in this case Gujarat Govt.) did reduce the IGST for state from 12% to NIL IGST for federal states but that to till only 30.06.2021. No relief to individuals on that account.

The Court also made use of Mr. Arvind Datar, as Amicus Curiae or friend of court. The petitioner, an 85-year-old gentleman who has put it up has put broad assertions under Article 21 (right to live) and the court in its wisdom also added Article 14 which enshrines equality of everyone before law.

The Amicus Curiae, as his duty, guided the court into how the IGST law works and shared a brief history of the law and the changes happening before and after it. During his submissions, he also shared the Mega Exemption Notification no. 50/2017 under which several items are there which are exempted from putting IGST. The Amicus Curiae did note that such exemptions were also there before Mega Exemption Notification had come into play.

However, DGFT (Directorate General of Foreign Trade) on 30-04-2021 issued notification No. 4/2015-2020 through which oxygenators had been exempted from Custom Duty/BCD (Basic Customs Duty. In another notification on no. 30/2021 dated 01.05.2021 it reduced IGST from 28% to 12% for personal use. If however the oxygenator was procured by a canalizing agency (bodies such as State Trading Corporation of India (STC) or/and Metals and Minerals Corporation (MMTC) and such are defined as canalising agents) then it will be fully exempted from paying any sort of IGST, albeit subject to certain conditions. What the conditions are were not shared in the open court.

The Amicus Curiae further observed that it is contrary to practice where both BCD and IGST has been exempted for canalising agents and others, some IGST has to be paid for personal use. To share within the narrow boundaries of the topic, he shared entry no. 607A of General Exemption no.190 where duty and IGST in case of life-saving drugs are zero provided the life-saving drugs imported have been provided by zero cost from an overseas supplier for personal use.

He further shared that the oxygen generator would fall in the same entry of 607A as it fulfills all the criteria as shared for life-saving medicines and devices. He also used the help of Drugs and Cosmetics Act 1940 which provides such a relief.

The Amicus Curiae further noted that GOI amended its foreign trade policy (2015-2020) via notification no.4/2015-2020, dated 30.04.2021, issued by DGFT where Rakhi and life-saving drugs for personal use has been exempted from BCD till 30-07-2021. No reason not to give the same exemption to oxygenators which fulfill the same thing.

The Amicus Curiae, further observes that there are “exceptional circumstances” provisions as adverted to in sub-section (2) of Section 25 of the Customs Act, whereby Covid-19 which is known and labelled as a pandemic where the distinctions between the two classes of individuals or agencies do not make any sense. While he did make the observation that exemption from duty is not a right, in the light of the pandemic and Article 14, it does not make sense to have distinctions between the two classes of importers.

He further shared from Circular no. 9/2014-Customs, dated 19.08.2014 by CBEC (Central Board of Excise and Customs) which gave broad exemptions under Section 25 (2) of the same act in respect of goods and services imported for safety and rehabilitation of people suffering and effected by natural disasters and epidemics.

He further submits that the impugned notification is irrational as there is no intelligible differentia rule applied or observed in classifying the import of oxygen concentrators into two categories. One, by the State and its agencies; and the other, by an individual for personal use by way of gift. So there was an absence of ‘adequate determining principle’. To bolster his argument, he shared the judgements of –

a) Union of India vs. N.S. Rathnam & Sons, (2015) 10 SCC 681 (N.S. Ratnams and Sons Case)

b) Shayara Bano vs. Union of India, (2017) 9 SCC 1 (Shayara Bano Case)

The Amicus Curiae also rightly observed that the right to life also encompasses within it, the right to health. You cannot have one without the other and within that is the right to have affordable treatment. He further stated that the state does not only have a duty but a positive obligation is cast upon it to ensure that the citizen’s health is secured. He again cited Navtej Singh Johars vs Union of India (Navtej Singh Johar Case) in defence of right to life. Mr. Datar also shared that unlike in normal circumstances, it is and should be enough to show ‘distinct and noticeable burdensomeness’ which is directly attributable to the impugned/questionable tax. The gentleman cited Indian Express Newspapers (Bombay) Private Limited vs. Union of India, (1985) 1 SCC 641 (Indian Express case) 1985 which shared both about Article 19 (1) (a) and Article 21.

Bloggers note – At this juncture, I should point out which I am sharing the judgement and I would be sharing only the Amicus Curiae POV and then the judge’s final observations. While I was reading it, I was stuck by the fact that the Amicus Curiae had cited 4 cases till now, 3 of them are pretty well known both in the legal fraternity and even among public at large. Another 3 which have been shared below which are also of great significance. Hence, felt the need to share the whole judgement.

The Amicus Curiae further observed that this tax would have to be disproportionately will have to be paid by the old and the infirm, and they might find it difficult to pay the amounts needed to pay the customs duty/IGST as well as find the agent to pay in this pandemic.

Blogger Note – The situation with the elderly is something like this. Now there are a few things to note, only Central Govt. employees and pensioners get pensions which has been freezed since last year. The rest of the elderly population does not. The rate of interest has fallen to record lows from 5-6% in savings interest rate to 2% and on Fixed Deposits at 4.9% while the nominal inflation rate has up by 6% while CPI and real inflation rates are and would be much more. And this is when there is absolutely no demand in the economy. To add to all this, RBI shared a couple of months ago that fraud of 5 trillion rupees has been committed between 2015 and 2019 in banks. And this is different from the number of record NPA’s that have been both in Public and Private Sector banks. To get out of this, the banks have squeezed their customers and are squeezing as well as asking GOI for bailouts. How much GOI is responsible for the frauds as well as NPA’s would probably require its own space. And even now, RBI and banks have made heavy provisions as lockdowns are still a facet and are supposed to remain a facet till the end of the year or even next year (all depending upon when we get the vaccine).

The Amicus Curiae further argued that the ventilators which are available locally are of bad quality. The result of all this has resulted in a huge amount of unsurmountable pressure on hospitals which they are unable to overcome. Therefore, the levy of IGST on oxygenators has direct impact on health of the citizen. So the examination of the law should not be by what intention it was but how it is affecting citizen rights now. For this he shared R.C.Cooper vs Union of India (another famous case R.C. Cooper vs Union of India) especially paragraph 49 and Federation of Hotel & Restaurant Association of India vs. Union of India, (1989) at paragraph 46 (Federation of Hotel Case)

Mr. Datar further shared the Supreme Court order dated 18.12.2020, passed in Suo Moto Writ Petition(Civil) No.7/2020, to buttress the plea that the right to health includes the right to affordable treatment.

Blogger’s Note – For those, who don’t know Suo Moto is when the Court, whether Supreme Court or the High Courts take up a matter for public good. It could be in anything, law and order, Banking, Finance, Public Health etc. etc. This was the norm before 2014. The excesses of the executive were curtailed by both the Higher and the lower Judiciary. That is and was the reason that Judiciary is and was known as the third pillar of Indian democracy. A good characterization of Suo Moto can be found here.

Before ending his submission, the learned Amicus Curiae also shared Jeeja Ghosh vs. Union of India, (2016) (Jeeja Ghosh Case, an outstanding case as it deals with people with disabilities and their rights and the observations made by the Division Bench of Hon’ble Mr. Justice A. K. Sikri as well as Hon’ble Mr. Justice R. K. Agrawal.)

After Amicus Curiae completed his submissions, it was the turn of Mr. Sudhir Nandrajog, and he adopted the arguments and submissions made by the Amicus Curiae. The gentleman reiterated the facts of the case and how the impugned notification was violative of both Article 14 and 21 of the Indian Constitution.

Blogger’s Note – The High Court’s judgement which shows all the above arguments by the Amicus Curiae and the petitioner’s lawyer also shared the State’s view. It is only on page 24, where the Delhi High Court starts to share its own observations on the arguments of both sides.

Judgement continued – The first observation that the Court makes is that while the petitioner demonstrated that the impugned tax imposition would have a ‘distinct and noticeable burdensomeness’ while the State did not state or share in any way how much of a loss it would incur if such a tax were let go and how much additional work would have to be done in order to receive this specific tax. It didn’t need to do something which is down the wire or mathematically precise, but it didn’t even care to show even theoretically how many people will be affected by the above. The counter-affidavit by the State is silent on the whole issue.

The Court also contended that the State failed to prove how collecting IGST from the concerned individuals would help in fighting coronavirus in any substantial manner for the public at large. The High Court shared observations from the Navtej Singh Johar case where it is observed that the State has both negative and positive obligations to ensure that its citizens are able to enjoy the right to health.

The High Court further made the point that no respectable person does like to be turned into a ‘charity case.’ If the State contends that those who obey the law should pay the taxes then it is also obligatory on the state’s part to lessen exactions such as taxes at the very least in times of war, famine, floods, epidemics and pandemics. Such an approach would lead a person to live a life of dignity which is part of Article 21 of the Constitution.

Another point that was made by the State that only the GST council is able to make any changes as regards to exemptions rather than the State were found to be false as the State had made some exemptions without going to the GST council using its own powers under Section 25 of the Customs Act.

The Court also points out that it does send a discriminatory pattern when somebody like petitioner has to pay the tax for personal use while those who are buying it for commercial use do not have to pay the tax.

The Court agreed of the view of the Amicus Curiae, Mr. Datar that oxygenator should be taxed at NIL rate at IGST as it is part of life-saving drugs and oxygenator fits the bill as medical equipment as it is used in the treatment, mitigation and prevention of spread of Coronavirus. Mr. Datar also did show that oxygenator is placed at the same level as other life-saving drugs. The Court felt further emboldened as the observations by Supreme Court in State of Andhra Pradesh vs. Linde India Limited, 2020 ( State of Andhra Pradesh vs Linde Ltd.)

The Court further shared many subsequent notifications from the State and various press releases by the State itself which does make the Court’s point that oxygenators indeed are drugs as defined in the court case above. The State should have it as part of notification 190. This would preserve the start of the notification date from 03.05.2021 and the state would not have to issue a new notification.

The Court further went to postulate that any persons similar to the petitioner could avail of the same, if they furnish a letter of undertaking to an officer designated by the State that the medical equipment would not be put to commercial use. Till the state does not do that, in the interim the importer could give the same undertaking to Joint Secretary, Customs or their nominee can hand over the same to custom officer.

The Court also shared that it does not disagree with the State’s arguments but the challenges which have arisen are in a unique time period/circumstances, so they are basing their judgement based on how the situation is.

The Court also mentioned an order given by Supreme Court Diary No. 10669/2020 passed on 20.03.2020 where SC has taken pains to understand the issues faced by the citizens. The court also mentioned the Small Scale Industrial Manufactures Association Case (both of these cases I don’t know) .

So in conclusion, the Court holds the imposition of IGST on oxygenator which are imported by individuals as gifts from their relatives as unconstitutional. They also shared that any taxes taken by GOI in above scenario have to be returned. The relief to the state is they will not have to pay interest cost on the same.

To check misuse of the same, the petitioner or people who are in similar circumstances would have to give a letter of undertaking to an officer designated by the State within 7 days of the state notifying the patient or anybody authorized by him/her to act on their behalf to share the letter of undertaking with the State. And till the State doesn’t provide an officer, the above will continue.

Hence, both the writ petition and the pending application are disposed off.

The Registry is directed to release any money deposited by the petitioner along with any interest occurred on it (if any) .

At the end they record appreciation of Mr. Arvind Datar, Mr. Zoheb Hossain, Mr. Sudhir Nandrajog as well as Mr. Siddharth Bambha. It is only due to their assistance that the court could reach the conclusion it did.

For Delhi High Court

RAJIV SHAKDHER, J.

TALWANT SINGH, J.

May 21, 2020

Blogger’s Observations – Now, after the verdict GOI does have few choices, either accept the verdict or appeal in the SC. A third choice is to make a committee and come to the same conclusions via the committee. GOI has done something similar in the past. If that happens and the same conclusions are reached as before, then the aggrieved may have no choice but to appear in the highest court of law. And this will put the aggrieved at a much more vulnerable place than before as SC court fees, lawyer fees etc. are quite high compared to High Courts. So, there is a possibility that the petitioner may not even approach unless and until some non-profit (NGO) does decide to fight and put it up as common cause or something similar.

There is another judgement that I will share, probably tomorrow. Thankfully, that one is pretty short compared to this one. So it should be far more easier to read. FWIW, I did learn about the whole freeenode stuff and many channels who have shifted from freenode to libera. I will share my own experience of the same but that probably will take a day or two.

Zeeshan of IYC (India Youth Congress) along with Salman Khan’s non-profit Being Human getting oxygenators

The above picture of Zeeshan. There have been a whole team of Indian Youth Congress workers (main opposition party to the ruling party) who have doing lot of relief effort. They have been buying Oxygenators from abroad with help of Being Human Foundation started by Salman Khan, an actor who works in A-grade movies in Bollywood.

The Great Train Robbery

I had a twitter fight few days back with a gentleman and the article is a result of that fight. Sadly, I do not know the name of the gentleman as he goes via a psuedo name and then again I’ve not taken permission from him to quote him in either way. So I will just state the observations I was able to make from the conversations we had. As people who read this blog regularly would know, I am and have been against Railway Privatization which is happening in India. And will be sharing some of the case studies from other countries as to how it panned out for them.

UK Railways

How Privatization Fails : Railways

The Above video is by a gentleman called Shaun who basically shared that privatization as far as UK is concerned is nothing but monopolies and while there are complex reasons for the same, the design of the Railways is such that it will always be a monopoly structure. At the most what you can do is have several monopolies but that is all that can happen. The idea of competition just cannot happen. Even the idea that subsidies will be less or/and trains will run on time is far from fact. Both of these facts have been checked and found to be truthful by fullfact.org. It is and argued that UK is small and perhaps it doesn’t have the right conditions. It is probably true but still we do deserve to have a glance at the UK railway map.

UK railway map with operators

The above map is copyrighted to Map Marketing where you could see it today . As can be seen above most companies had their own specified areas. Now if you had looked at the facts then you would have seen that UK fares have been higher. In fact, an oldish article from Metro (a UK publication) shares the same. In fact, UK nationalized its railways effectively as many large rail operators were running in red. Even Scotland is set to nationalised back in March 2022. Remember this is a country which hasn’t seen inflation go upwards of 5% in nearly a decade. The only outlier was 2011 where they indeed breached the 5% mark. So from this, what we see is ‘Private Gains’ and “Private Gains Public Losses’ perhaps seem fit. But then maybe we didn’t use the right example. Perhaps Japan would be better. They have bullet trains while UK is still thinking about it. (HS2).

Japanese Railway

Below is the map of Japanese Railway

Railway map of Japan with ‘private ownership’ – courtesy Wikimedia commons

Japan started privatizing its railway in 1987 and to date it has not been fully privatized. And on top of it, amount as much as ¥24 trillion of the long-term JNR debt was shouldered by the government at the expense of taxpayers of Japan while also reducing almost 1/4th of it employees. To add to it, while some parts of Japanese Railways did make profits, many of them made profits by doing large-scale non-railway business mostly real estate of land adjacent to railway stations. In many cases, it seems this went all the way up to 60% of the revenue. The most profitable has been the Shinkansen though. And while it has been profitable, it has not been without safety scandals over the years, the biggest in recent years was the 2005 Amagasaki derailment. What was interesting to me was the Aftermath, while the Wikipedia page doesn’t share much, I had read at the time and probably could be found how a lot of ordinary people stood up to the companies in a country where it is a known fact that most companies are owned by the Yakuza. And this is a country where people are loyal to their corporation or company no matter what. It is a strange culture to west and also here in India where people change jobs on drop of hat, although nowadays we have record unemployment. So perhaps Japan too does not meet our standard as it doesn’t do competition with each other but each is a set monopoly in those regions. Also how much subsidy is there or not is not really transparent.

U.S. Railways

Last, but not the least I share the U.S. Railway map. This is provided by A Mr. Tom Alison on reddit on channel maporn. As the thread itself is archived and I do not know the gentleman concerned, nor have taken permission for the map, hence sharing the compressed version –

U.S. Railway lines with the different owners

Now the U.S. Railways is and has always been peculiar as unlike the above two the U.S. has always been more of a freight network. Probably, much of it has to do that in the 1960’s when oil was cheap, the U.S. made zillions of roadways and romanticized the ‘road trip’ and has been doing it ever since. Also the creation of low-cost airlines definitely didn’t help the railways to have more passenger services, in fact the opposite.

There are and have been smaller services and attempts of privatization in both New Zealand and Australia and both have been failures. Please see papers in that regard. My simple point is this, as can be seen above, there have been various attempts at privatization of railways and most of them have been a mixed bag. The only one which comes close to what we think as good is Japanese but that also used a lot of public debt which we don’t know what will happen on next. Also for higher-speed train services like a bullet train or whatever, you need to direct, no hair pen bends. In fact, a good talk on the topic is the TBD podcast which while it talks about hyperloop, the same questions is and would be asked if were to do in India. Another thing to be kept in mind is that the Japanese have been exceptional builders and this is because they have been forced to. They live in a seismically active zone which made Fukushima disaster a reality but at the same time, their buildings are earthquake-resistant.

Standard Disclaimer – The above is a simplified version of things. I could have added in financial accounts but that again has no set pattern. For e.g. some Railways use accrual, some use cash and some use hybrid. I could have also shared in either the guage or electrification but all have slightly different standards, although uniguage is something that all Railways aspire for and electrification is again something that all Railways want although in many cases it just isn’t economically feasible.

Indian Railways

Indian Railways itself recently made the move from Cash to Accrual couple of years back. In-between for a couple of years, it was hybrid. The sad part is and was you can now never measure against past performance in the old way because it is so different. Hence, whether the Railways will be making a loss or a profit, we would come to know only much later. Also, most accountants don’t know the new system well, so it is gonna take more time, how much unknown. Sadly, what GOI did a few years back is merge the Railway budget into the Union Budget. Of course, the excuse they gave is too many pressures of new trains, while the truth is, by doing this, they decreased transparency about the whole thing. For e.g. for the last few years, the only state which had significant work being done is in U.P. (Uttar Pradesh) and a bit in Goa, although that is has been protested time and again. I being from the neighborly state of Maharashtra , and have been there several times. Now it does feels all like a dream, going to Goa :(.

Covid news

Now before I jump on the news, I should share the movie ‘Virus’ (2019) which was made by the talented Aashiq Abu. Even though, am not a Malayalee, I still have enjoyed many of his movies simply because he is a terrific director and Malayalam movies, at least most of them have English subtitles and lot of original content.. Interestingly, unlike the first couple of times when I saw it a couple of years back. The first time I saw it, I couldn’t sleep a wink for a week. Even the next time, it was heavy. I had shared the movie with mum, and even she couldn’t see it in one go. It is and was that powerful Now maybe because we are headlong in the pandemic, and the madness is all around us. There are two terms that helped me though understand a great deal of what is happening in the movie, the first term was ‘altered sensorium’ which has been defined here. The other is saturation or to be more precise ‘oxygen saturation‘. This term has also entered the Indian twitter lexicon quite a bit as India has started running out of oxygen. Just today Delhi High Court did an emergency hearing on the subject late at night. Although there is much to share about the mismanagement of the center, the best piece on the subject has been by Miss Priya Ramani. Yup, the same lady who has won against M.J. Akbar and this is when Mr. Akbar had 100 lawyers for this specific case. It would be interesting to see what happens ahead.

There are however few things even she forgot in her piece, For e.g. reverse migration i.e. from urban to rural migration started again. Two articles from different entities sharing a similar outlook.Sadly, the right have no empathy or feeling for either the poor or the sick. Even the labor minister Santosh Gangwar’s statement that around 1.04 crores were the only people who walked back home. While there is not much data, however some work/research has been done on migration to cites that the number could be easily 10 times as much. And this was in the lockdown of last year. This year, again the same issue has re-surfaced and migrants learning lessons started leaving cities. And I’m ashamed to say I think they are doing the right thing. Most State Governments have not learned lessons nor have they done any work to earn the trust of migrants. This is true of almost all state Governments. Last year, just before the lockdown was announced, me and my friend spent almost 30k getting a cab all the way from Chennai to Pune, how much we paid for the cab, how much we bribed the various people just so we could cross the state borders to return home to our anxious families. Thankfully, unlike the migrants, we were better off although we did make a loss. I probably wouldn’t be alive if I were in their situation as many didn’t. That number is still in the air ”undocumented deaths’ 😦

Vaccine issues

Currently, though the issue has been the Vaccine and the pricing of the same. A good article to get a summation of the issues outlined has been shared on Economist. Another article that goes to the heart of the issue is at scroll. To buttress the argument, the SII chairman had shared this few weeks back –

Adar Poonawala talking to Vishnu Som on Left, right center, 7th April 2021.

So, a licensee manufacturer wants to make super-profits during the pandemic. And now, as shared above they can very easily do it. Even the quotes given to nearby countries is smaller than the quotes given to Indian states –

Prices of AstraZeneca among various states and countries.

The situation around beds, vaccines, oxygen, anything is so dire that people could go to any lengths to save their loved ones. Even if they know if a certain medicine doesn’t work. For e.g. Remdesivir, 5 WHO trials have concluded that it doesn’t increase mortality. Heck, even AIIMS chief said the same. But both doctors and relatives desperation to cling on hope has made Remdesivir as a black market drug with unoffical prices hovering anywhere between INR 14k/- to INR30k/- per vial. One of the executives of a top firm was also arrested in Gujarat. In Maharashtra, the opposition M.P. came to the ‘rescue‘ of the officials of Bruick pharms in Mumbai.

Sadly, this strange affliction to the party in the center is also there in my extended family. At one end, they will heap praise on Mr. Modi, at the same time they can’t get wait to get fast out of India. Many of them have settled in horrors of horror Dubai, as it is the best place to do business, get international schools for the young ones at decent prices, cheaper or maybe a tad more than what they paid in Delhi or elsewhere. Being an Agarwal or a Gupta makes it easier to compartmentalize both things. Ease of doing business, 5 days flat to get a business registered, up and running. And the paranoia is still there. They won’t talk on the phone about him because they are afraid they may say something which comes back to bite them. As far as their decision to migrate, can’t really blame them. If I were 20-25 yeas younger and my mum were in a better shape than she is, we probably would have migrated as well, although would have preferred Europe than anywhere else.

Internet Freedom and Aarogya Setu App.

Internet Freedom had shared the chilling effects of the Aarogya Setu App. This had also been shared by FSCI in the past, and recently had their handle being banned on Twitter. This was also apparent in a legal bail order which the high court judge gave. While I won’t go into the merits and demerits of the bail order, it is astounding for the judge to say that the accused, even though he would be on bail install an app. so he can be surveilled. And this is a high court judge, such a sad state of affairs. We seem to be putting up new lows every day when it comes to judicial jurisprudence. One interesting aspect of the whole case was shared by Aishwarya Iyer. She shared a story that she and her team worked on quint which raises questions on the quality of the work done by Delhi Police. This is of course, up to Delhi Police to ascertain the truth of the matter because unless and until they are able to tie in the PMO’s office in for a leak or POTUS’s office it hardly seems possible. For e.g. the dates when two heads of state can meet each other would be decided by the secretaries of the two. Once the date is known, it would be shared with the press while at the same time some sort of security apparatus would kick in place. It is incumbent, especially on the host to take as much care as he can of the guest. We all remember that World War 1 (the war to end all wars) started due to the murder of Archduke Ferdinand.

As nobody wants that, the best way is to make sure that a political murder doesn’t happen on your watch. Now while I won’t comment on what it would be, it would be safe to assume that it would be z+ security along with higher readiness. Especially if it as somebody as important as POTUS. Now, it would be quite a reach for Delhi Police to connect the two dates. They either will have to get creative with the dates or some other way. Otherwise, with practically no knowledge in the public domain, they can”t work in limbo. In either case, I do hope the case comes up for hearing soon and we see what the Delhi Police says and contends in the High Court about the same. At the very least, it would be irritating for them to talk of the dates unless they can contend some mass conspiracy which involves the PMO (and would bring into question the constant vetting done by the Intelligence dept. of all those who work in PMO). And this whole case is to kind of shelter to the Delhi riots which happened in which majorly the Muslims died but their deaths lay unaccounted till date 😦

Conclusion

In Conclusion, I would like to share a bit of humor because right now the atmosphere is humorless, both with authoritarian tendencies of the Central Govt. and the mass mismanagement of public health which they now have left to the state to do as they fit. The peice I am sharing is from arre, one of my goto sites whenever I feel low.

Women state in India and proposal for corporates in Indian banking

Gradle and Kotlin in Debian

Few months back, I was looking at where Gradle and Kotlin were in Debian. They still seem to be a work in progress. I found the Android-tools salsa repo which tells me the state of things. While there has been movement on both, a bit more on Kotlin, it still seems it would take a while. For kotlin, the wiki page is most helpful as well as the android-tool salsa kotlin board page . Ironically, some of the more important info. is shared in a blog post which ideally should also have been reflected in kotlin board page . I did see some of the bugs so know it’s pretty much dependency hell. I can only congratulate and encourage Samyak Jain and Raman Sarda. I also played a bit with the google-android-emulator-installer which is basically a hook which downloads the binary from google. I do not know what the plans are, but perhaps in the future they also might be build locally, who knows. Just sharing/stating here so it’s part of my notes whenever I wanna see what’s happening 🙂

Women in India

I am sure some of you might remember my blog post from last year. It is almost close to a year 2020 now and the question to be asked is, has much changed ? After a lot or hue and cry the Government of India shared the NCRB data of crimes against women and caste crimes. The report shared that crimes against women had risen by 7.3% in a year, similarly crimes against lower castes also went by similar percentage . With the 2020 pandemic, I am sure the number has gone up more. And there is a possibility that just like last year, next year the Government would cite the pandemic and say no data. This year they have done it for migrant deaths during lockdown , for job losses due to the pandemic and so on and so forth. So, it will be no surprise if the Govt. says about NCRB data next year as well. Although media has been showing some in spite of the regular threats to the journalists as shared in the last blog post. There is also data that shows that women participation in labor force has fallen sharply especially in the last few years and the Government seems to have no neither idea nor do they seem to care for the same. There aren’t any concrete plans to bring back the balance even a little bit.

Few Court judgements

But all hope is not lost. There have been a couple of good judgements, one from the CIC (Chief Information Commissioner) wherein in specific cases a wife can know salary details of her husband, especially if there is some kind of maintenance due from the husband. There was so much of hue and cry against this order that it was taken down from the livelaw RTI corner. Luckily, I had downloaded it, hence could upload and share it.

Another one was a case/suit about a legally matured women who had decided to marry without parental consent. In this case, the Delhi High Court had taken women’s side and stated she can marry whom she wants. Interestingly, about a week back Uttar Pradesh (most notorious about crime against women) had made laws called ‘Love Jihad‘ and 2 -3 states have followed them. The idea being to create an atmosphere of hate against Muslims and women have no autonomy about what they want. This is when in a separate suit/case against Sudharshan TV (a far-right leaning channel promoting hate against Muslims) , the Government of India itself put an affidavit stating that Tablighis (a sect of Muslims who came from Malaysia to India for religious discourse and assembly) were not responsible for dissemination of the virus and some media has correctly portrayed the same. Of course, those who are on the side of the Govt. on this topic think a ‘traitor’ has written. They also thought that the Govt. had taken a wrong approach but couldn’t tell of a better approach to the matter.

There are too many matters in the Supreme Court of women asking for justice to tell all here but two instances share how the SC has been buckling under the stress of late, one is a webinar which was chaired by Justice Subramaniam where he shared how the executive is using judicial appointments to do what it wants. The gulf between the executive and the SC has been since Indira Gandhi days, especially the judicial orders which declared that the Emergency is valid by large, it has fallen much more recently and the executive has been muscling in which have resulted in more regressive decisions than progressive.

This observation is also in tune with another study which came to the same result although using data. The raw data from the study could give so much more than what has been shared. For e.g. as an idea for the study, of the ones cited, how many have been in civil law, personal law, criminal or constitutional law. This would give a better understanding of things. Also what is shocking is none of our court orders have been cited in the west in the recent past, when there used to be a time when the west used to take guidance from Indian jurisprudence sometimes and cite the orders to reach similar conclusion or if not conclusion at least be used as a precedent. I guess those days are over.

Government giving Corporate ownership to Private Sector Banks

There was an Internal Working Group report to review extant ownership guidelines and Corporate Structure for Indian Private Sector Banks. – This is the actual title of the report.

Now there were and are concerns about the move which were put forth by Dr. Raghuram Rajan and Viral Acharya. While Dr. Rajan had been the 23rd Governor of RBI from 4th September 2013 to 4th September 2016.

His most commendable work which largely is unknown to most people was the report A hundred small steps which you buy from sage publications. Viral Acharya was the deputy governor from 23rd January 2017 – 23rd July 2019. Mr. Acharya just recently published his book Quest for Restoring Financial Stability in India which can be bought from the same publication house as well.

They also wrote a three page article stating that does India need corporates in banking? More interestingly, he shares two points from history both world war 1 and world war 2. In both cases, the allies had to cut down the businesses who had owned banks. In Germany, it was the same and in Japan, the zaibatsu’s dissolution, both of which were needed to make the world safe again. Now, if we don’t learn lessons from history it is our fault, not history’s.

What was also shared that this idea was taken up in 2013 but was put into cold-storage. He also commented on the pressure on RBI as all co-operative banks have come under its ambit in the last few months. RBI has had a patchy record, especially in the last couple of years, with big scams like ILFS, Yes Bank, PMC Bank, Laxmi Vilas Bank among others. The LVB Bank being the most recent one.

If new banking licenses have to be given they can be given to good NBFC’s who have been in the market for a long time and have shown maturity while dealing with public money. What is the hurry for giving it to Corporate/business houses ? There are many other good points in the report with which both Mr. Rajan and Mr. Acharya are in agreement and do hope the other points/suggestions/proposals are implemented. There was and is an interesting report by Reserve Bank of India called financial sector legislative reforms commission report volume 1 . If and when it gets deleted from RBI, I have put up a copy at my WordPress account, so we shall always have one.

Interestingly, while looking through the people who were part of the committee was a somewhat familiar name Murmu . This is perhaps the first time you see people from a sort of political background being in what should be a cut and dry review which have people normally from careers in finance or Accounts. It also turns out that only one person was in favor of banks going to corporates, all the rest were against.

It seems that the specific person hadn’t heard the terms ‘self-lending’, ‘connected-lending’ and conflict of interest. One of the more interesting comments in the report is if a corporate has a bank, then why would he go to Switzerland, he would just wash the money in his own bank. And if banks were to become to big to fail like it happened in the United States, it would be again private gains, public losses. There was also a Washington Post article which shares some of the reasons that Indian banks fail. I think we need to remind ourselves once again, how things can become –

https://www.youtube.com/watch?v=2gK3s5j7PgA

Positive News at end

At the end I do not want to end on a sour notes, hence sharing a YouTube channel of Films Division India where you can see of the very classic works and interviews of some of the greats in Indian art cinema.

https://www.youtube.com/user/FilmsDivision/videos

Also sharing a bit of funny story I came to know about youtube-dl, apparently it was taken off from github but thanks to efforts from EFF, Hackernews and others, it is now back in action.

Doha and the Supreme Court of DFSG Free

Hi,

I am in two minds of what to write about Doha. My job has been vastly simplified by a friend when he shared with me https://www.youtube.com/watch?v=LdrAd-44LW0 . That video is more relevant and more closer to the truth than whatever I can share. As can be seen it is funny but more sad the way Qatarians are trying to figure out how things will be and as can be seen it seems to heading towards a ‘real estate bubble’ . They would have to let go of the Sharia if they are thinking of wealthy westerners coming to stay put. I am just sad to know that many of my country-men are stuck there and although I hope the best for them, I dread it may turn out the way it has turned out for many people of Indians, and especially from Kerala in Saudi Arabia. I would touch about the Kerala situation probably in another blog post as this time is exclusively for legal aspects which were discussed in Debconf.

A bit of backgrounder here, one part of my family is lawyers which means I have somewhat notion of law as practiced in our land. As probably everybody knows, India was ruled by the British for around 150 odd years. One of the things that they gave while leaving was/is the IPC (Indian Penal Code) and is practiced with the common law concept. The concept means precedence of any judgement goes quite some way in framing rulings and law of the land as time goes on besides the lobbying and the politics which happens in any democracy.

Free software would not have been there without the GPL – The General Public License. And the license is as much a legal document as it’s something that the developers can work without becoming deranged, as it is one of the more simpler licenses to work with.

My own understanding of the legal, ethical and moral issues around me were framed by two-three different TV shows, books (fiction and non-fiction alike) apart from what little news I heard in family. One was ‘M*A*S*H* (with Alan Alda and his frailness, anarchism, humanism, civil rights), the ‘Practise’ and ‘Boston Legal’ which does lay bare the many grey areas that lawyers have to deal with (‘The Practice’ also influenced a lot of civil rights understanding and First amendment, but as it is a TV show, how much of it is actually practiced for lawyers and how much moral dilemma they are can only be guessed at.) . In books it is artists like John Grisham, Michael Connelly as well as Perry Mason – Agatha Christie. In non-fiction look at the treasures under bombayhighcourt e-books corner and series of Hamlyn Lectures. I would have to warn that all of the above are major time-sinks but rewarding in their own way. Also haven’t read all of them as time and interests are constrained but do know they are good for understanding bit of our history. I do crave for a meetup kind of scenario when non-lawyers can read and discuss about facets of law .

All that understanding was vastly amplified by Groklaw.net which made non-lawyers at the very least be able to decipher and understand what is going on in the free software world. After PJ (Pamela Jones) closed it in 2013 due to total surveillance by the Free World (i.e. the United States of America, NSA) we have been thirsty. We do get occasionally somewhat mildly interesting articles in lwn.net or arstechnica.net but nowhere the sheer brilliance of groklaw.

So, it was a sheer stroke of luck that I met Mr. Bradley M. Kuhn who works with Karen Sandler on Software Conservancy. While I wanted to be there for his presentation, it was just one of those days which doesn’t go as planned. However, as we met socially and over e-mail there were two basic questions which I asked him which also imbibes why we need to fight for software freedom in the court of law. Below is a re-wording of what he shared .

Q1. why do people think that GPL still needs to be challenged in the court of law while there are gpl-violations which has been more or less successfully defended in the court of law ?

Bradley Kuhn – the GPL violations is basically a violation of one or more clauses of the GPL license and not the GPL license as a whole and my effort during my lifetime would be to make/have such precedents that the GPL is held as a valid license in the court of law.

Q2. Let’s say IF GPL is held to be valid in the court of law, would FSF benefit monetarily, at least to my mind it might be so, as more people and comapnies could be convinced to use strong copyleft licenses such as GPLv3 or AGPLv3 .

Bradley Kuhn – It may or may not. It is possible that even after winning, that people and especially companies may go for weak copyleft licenses if it suits them. The only benefit would probably would be to those people who are already using GPLv3 as the law could be used to protect them as well. Although we would want and welcome companies who would use strong copyleft license such as the GPL, the future is ‘in future’ and hence uncertain. Both possibilities co-exist.

While Bradley didn’t say it, I would add further here it probably would mean also moving from being a more offensive mode (which GPL-violations is based upon where a violation occurs and somebody either from the victim’s side or a by-stander notices the violation, brings it to the notice of the victim and the GPL-volations team.) to perhaps it being defended by the DMCA people themselves, once GPL is held as a valid license in the eyes of law. Although should you use the DMCA or not is a matter of choice, personal belief system as well as your legal recourses.

I have to share that the FSF and the GPL-violations team are probably very discerning when they take up the fight as most of the work done by them is pro-bono (i.e. they don’t make a single penny/paisa from the work done therein.) and hence in view of scarce resources, it makes sense to go only for the biggest violators in the hopes that you can either make them agree to compensate and agree to the terms of license of any software/hardware combination or sue them and take a bigger share of the reward/compensation awarded by the Court to help the defendant and maybe some of the proceeds donated by the defendant and people like you and me to make sure that Conservancy and the GPL-violations team is still around to help the next time something similar happens.

Bradley Kuhn presenting at #Debconf 16

Now, as far as his presentation is concerned, whose video can be seen at http://meetings-archive.debian.net/pub/debian-meetings/2016/debconf16/The_Supreme_Court_of_DFSGFree.webm , I thought it was tame. While he talked about ‘gaming the system’ in some sense, he was sharing that the system debian-legal works (most-of-the-time). The list actually works because many far more brilliant people than me take time to understand the intricacies of various licenses and how they should be interpreted through the excellently written Debian Free Software Guidelines and whether the license under discussion contravenes the DFSG or is part of it. I do agree with his point though that the ftp-master/s and the team may not be the right person to judge the license in adherence to the DFSG, or her/is not giving a reason for rejecting a package to not entering into the package archive.

I actually asked the same question on debian-legal and while I had guessed, it seems there is enough review of the licenses per-se as answer from Paul Wise shows. Charles Pessley also shared an idea he has documented which probably didn’t get much traction as involves more ‘work’ on DD’s without any benefit to show for it. All in all I hope it sheds some light on why there is need to be more aware of law in software freedom. Two Organizations which work on software freedom from legal standpoint are SFLC  (Delhi) headed by the charming Mr. Eben Moglen  and ALF (Bangalore). I do hope more people, especially developers take a bit more interest in some of the resources mentioned above.