By releasing Dr Kafeel Khan, the Allahabad HC has upheld civil liberties and exposed the State Govt’s oppressive intent
At a time when the judiciary is increasingly being perceived to be shadowed by the executive and prevailing sentiment, the Allahabad High Court ruling freeing Gorakhpur doctor Kafeel Khan from preventive custody is reassuring. For it strictly went by the facts of the case instead of perception, as every court should, and upheld the civil liberties of citizens, who are increasingly being persecuted by law should they choose to dissent. Most importantly, it upheld the incorruptible sheen of the institution that is the only armour of the common man. The Uttar Pradesh Government held Khan in preventive custody after he was booked under the National Security Act (NSA) for delivering a “provocative speech” against the discriminatory clauses of the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) at Aligarh Muslim University. The court, sifting through every word and context of the speech, was categorical that it did not “promote hatred or violence” and was in no way inflammatory or threatened law and order. If anything, it emphasised the unity and diversity of the country. It even pointed how the district magistrate (DM) of Aligarh had ordered his detention after “selective reading and selective mention of few phrases from the speech ignoring its true intent.” The court then systematically punched holes in the administration’s rationale saying no reasonable man would have come to the conclusion about the speech in the manner that the DM did. But then reason is the first casualty of a propaganda war. Particularly one that is structured according to majoritarian requirements. Of course, the hasty and selective action was intended to perpetuate the official Government narrative that a certain community was being divisive about a new citizenship law by labelling its valid concerns as “hate speech.” The fact is notables and civil society came out spontaneously against the exclusionary nature of the law and the mindset behind the religion-based approach of naturalising asylum seekers. Clearly, the State used oppressive tools to silence what had galloped into a countrywide movement. In Khan’s case, the deliberateness is all the more evident as he made the speech in December but was detained in February, following the Chief Judicial Magistrate court’s order granting him bail. The NSA case was slapped on him around that time to keep him in jail, where he has been seven months now. And the State Government clearly held sway over the lower courts to set an example and scare dissenters from taking to the streets. The Allahabad High Court, through its ruling, has clearly indicted the intent of the State Government to hound voices critical of it.
Dr Khan is no stranger to controversy, having been blamed for children’s deaths at a Gorakhpur hospital when he tried to procure oxygen cylinders to save them. That did not deter him from pursuing causes he felt mattered to the everyday citizen. This bias is why he feels his persecution would not end so soon as a new case could be slapped on him on some wild pretext or the other. In other words, the fear of victimhood remains. This is hardly a favourable image of our justice system. The court’s job is to uphold the fundamental rights of the citizen to free speech and protest and ensure his/her life and personal liberty are safe under Article 21 of the Constitution. Hopefully, this judgment will spur neutral and independent assessment of pending civil liberty cases across the country.
Bhushan may claim a moral victory but it is up to the SC to follow up on its suggestion for a code on judicial misconduct
In the end, it was judicial integrity that won. Rather saved the day. The Supreme Court decided not to go after activist-advocate Prashant Bhushan for criticising it as that would appear graceless and unbecoming of its wisdom. On his part, the lawyer claimed moral victory for the cause he represented, namely ridding the higher judiciary of corruption and coercion. The top court, as the ultimate upholder of Constitutional morality, fined Bhushan just a rupee for two of his tweets it claimed “tarnished” its image and amounted to a contempt of court. Since the criticism came from within the legal community, the court decided it would honour the fraternal spirit and let go of Bhushan with the tokenism of a fine and a concern that the judiciary should not be taken apart in public by its own. To that extent, it showed it had shoulders broad enough to weather storms and work on an internal mechanism of course correction going forward. In fact, it went along with Attorney General K K Venugopal’s opinion that the court take a “compassionate view” and forgive Bhushan, considering that several sitting and retired judges had commented on corruption in the higher judiciary before him. But what prompted the top court to simmer down was the precedent of a press conference held by four senior judges in January 2018, warning how the judiciary was facing threats to its independence, how democracy was in danger and criticising the then CJI over allocation of case rosters. The issues raised by them are still unresolved. Besides, the Supreme Court hasn’t been able to silence the controversy over its handling of sensitive and high profile cases that came after that explosive episode. Since the perception of the executive breathing down on the judiciary had already been established by that press conference, punishing Bhushan, therefore, would have only lionised the latter.
Bhushan paid up the fine but has reserved the right to seek a review, indicating his fight for transparency and ethics will go on. His methods may have been questionable and unorthodox in the many public interest litigations (PILs) that he has filed but the cause he championed this time, namely upholding the independence of the judiciary, found all-round support in the public domain. Over 3,000 citizens, including lawyers, advocates and 12 former judges, signed a solidarity statement, arguing that his tweets were “a bona fide expression of concern regarding the functioning of the top court” and that criticism coming from a senior member of the Bar “must be considered by the judiciary as an opportunity to introspect and strengthen the institution.” If he does file the review plea, the court will be watched for its response and action on the issues that have been raised so far. One hopes it will follow up on its own observations. With regard to contempt of court proceedings initiated in 2009 against Bhushan, for his charge that half of the 16 former CJIs were corrupt, it had acknowledged a procedural vacuum for making a complaint or allegation against a sitting judge. In fact, it wondered if there should be a code for members of the Bar (advocates) to make a complaint against a sitting judge before going public with their allegations, something which is prone to be sensationalised and could affect the image of the judiciary. The Bench even referred to the Supreme Court’s 1995 judgment in the C Ravichandran Iyer case, where it had laid down that if members of the Bar had any material about “misconduct” of a judge, they should take their case to the Chief Justice of the High Court or the Supreme Court for redressal. The apex court’s “look within” deliberations should help it recast itself as a standalone pillar of democracy that is above criticism. There is no denying that the Supreme Court has been entrusted by the Constitution to protect a citizen’s rights, conduct itself impartially and keep the legislature and the executive from overreaching their limits. Setting aside Bhushan’s case, it needs to set an example for its own sake. Questions have been raised about prioritising case hearings, the handling of civil liberty cases and most importantly what defines freedom of speech. Yes, the court is right to point out that judges shouldn’t go to the media, like they did in 2018, and blot institutional pride. But for that, it needs to be seen to self-correct. In the end, the Supreme Court is the country’s most honourable institution and if it re-establishes propriety, no individual would dare speak against it.
Courtesy: The Pioneer
The Supreme Court on Monday imposed a token fine of one rupee against activist-lawyer Prashant Bhushan as punishment in the contempt case against him. Bhushan, who has been convicted for two tweets against the judiciary, has to deposit the fine with the Supreme Court registry by September 15, said a bench headed by Justice Arun Mishra. Failure to comply would entail a three-month jail term and debarment from law practice for three years, it said. The bench, also comprising Justices B R Gavai and Krishna Murari, said freedom of speech cannot be curtailed but rights of others need to be respected.
On August 14, the apex court had held Bhushan guilty of criminal contempt for his two derogatory tweets against the judiciary and said they cannot be said to be a fair criticism of the functioning of the judiciary made in public interest. Bhushan in his statement had refused to offer an apology to the Supreme Court for the tweets, saying what he had expressed represented his bona fide belief which he continued to hold.
Courtesy: The Pioneer
The Government has done the right thing by giving up the idea of social media monitoring in India.
The Government has rightfully taken a step back and abandoned the idea of setting up a social media monitor, ostensibly intended to assess public rating of its performance and inherently track the dissemination of what it perceived as “fake news” or incendiary material and keep track of a public mindset. Now any assessment of this nature cannot be absolute but subjective, depending on semantics, context and the perspective with which one interprets information. What is destructive propaganda to some may seem to be constructive criticism to others. Any kind of vigilance or tracking mechanism, therefore, automatically assigns a “big brother” watchdog role to the establishment and makes it an arbiter of personal freedoms. As the Supreme Court rightly observed while hearing a plea against the idea of setting up a social media monitor, we would then become a surveillance state subject to totalitarian controls. And the Emergency continues to be a blot in our national timeline, shades of which no Government would want to revisit.
The democratic right to free speech and expression must be protected at all costs. Particularly in social media, which has emerged as a platform for accommodation of all sorts of views, taking along assent with dissent and allowing a space where many agree to disagree and exchange opinions fearlessly despite being trolled. Satire and cartoons, genres which have consistently lost their space in mainstream media, have found a new voice on digital platforms.
Any healthy democracy needs cross currents to emerge relevant and dynamic. To profile people on the basis of their private views and put them in different file management systems as a predictive model of future public behaviour or loyalties and accordingly shape influencers among them is downright presumptuous and facetious. Needless to say dangerous to free will. We all know what happened to Cambridge Analytica and stocks of Facebook when they dangerously sought to selectively mine private data for political games.
The role of a digital monitor became controversial after initial reports indicated that the new proposal included scrutiny of emails, an extremely private territory and something that cannot be done without sanction usually reserved for criminal investigations. The Government had even argued that the hub would be a sort of dipstick study for feedback on its many schemes just like what many private and public organisations tabulate. But a Government survey sheet is intimidating at the grassroots where people would not want to say anything to be in the bad books. Besides, one must realise a dissenting voice is as much nationalistic as a consenting one. Good, the Government did not juggle with this hot potato endlessly and decide to bury it instead.
Courtesy: The Pioneer
The on-going COVID-19 pandemic has uprooted the lives and livelihoods, routines, structures and fundamental ecosystems of many across the globe. While those with resources – financial and otherwise – have been able to weather the storm of uncertainty brought on by the pandemic, there are many left to fend for themselves in cutthroat and ruthless situations.
With due sensitivity and deference to the difficulties faced by individuals of various means, one cannot lose sight of the fact that many businesses and corporates are now faced with dilemmas of survival. Businesses, especially industrial and supply chain oriented businesses, have faced the brunt of closed factory floors, voluminous lay-offs and retrenchment of employees, closed borders, dishonoured contracts and tenancies and contentious insurance claims. The Insolvency and Bankruptcy Code, 2016 (“IBC”) introduced as a mechanism for prompt and timely resolution, and a potent sword to prevent defaults on payments, has been sheathed away, in a time when businesses are in dire need of financial security and stability.
The IBC, 2016 as amended to date, oft referred to as a ‘game changer’ for debt restructuring and resolution of ailing businesses, has been rendered toothless in the face of two developments. The first, is an amendment notified by the Central Government on 24th March, 2020, amending Section 4 of the Code, by raising the pecuniary jurisdiction for filing insolvency and bankruptcy petitions, from Rs. 1 lac, to Rs. 1 Crore, meaning that the threshold for filing fresh cases has been increased 100-fold, and is also the highest possible enhancement permissible under the existing Code. Although the notification itself is silent on the reasons, various press reports claim the rationale behind it as protecting Micro, Medium and Small Enterprises (MSME’s) by prohibiting initiation of petitions against these enterprises, unless the threshold limit is satisfied. The actual notification, however, is neither limited to MSME’s, de-facto according the same treatment and protection to even the largest conglomerates, and nor does it set any time limit for restoration of the earlier threshold, preventing petitions against corporate debtors of any stature, unless the default reaches the threshold of Rs. 1 Crore.
The second, is the Ordinance promulgated by the President of India on 5th June, 2020 suspending the initiation of corporate resolution proceedings, by the insertion of Section 10A into the Code, which prohibits the filing of petitions by financial creditors, operational creditors, and even the corporate debtor itself, on account of any default arising on or after 25th March, 2020, for a period of 6 months. The ordinance further mandates that no application “shall ever be filed” for default occurring in this 6 month period, and is extendable by another 6 months, by appropriate notification. Again, if one is to review the factors mentioned in the notification, one sees reference made to uncertainty and stress on business on account of the COVID-19 pandemic, and a perceived difficulty in finding adequate number of resolution applicants to rescue corporate debtors.
Looking at the spectrum of business arrangements – transactions, supply chains, payments, credit facilities, guarantees, letters of credit, and countless other business arrangements that are possible and entered into on a daily basis, the rationale behind the neutralizing of the IBC, 2016 appears myopic at best, while the consequences of these changes are overarching and accord blanket protection to all across the board.
The Preamble to the IBC, 2016 lays out its objects as “reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all stakeholders […]”. In a recent Supreme Court judgment, related to the Essar group, an enunciated and comprehensive approach to the IBC, 2016 has fallen from their Lordships, focusing squarely on resolution by value maximization and a consideration of balancing the interests of the breadth of relevant stakeholders. The law, therefore, is undeniably value oriented and requires accounting for all stakeholders, rather than a binary approach of “do or die”.
According blanket immunity to defaulters and turning off the IBC, 2016 regime appears contrary to this legal policy, and comes across as a knee-jerk reaction, without accounting for genuine cases in which businesses, but for enforcing debts, run the risk of running under and succumbing to COVID-19. While the law aspires for equal treatment in all cases, the approach to suspend the IBC, 2016, even temporarily, takes away the need and opportunity to separate the wheat from the chaff and can prevent even those meritorious claims where default was on the horizon and protects the defaulters, at the expense of the creditors. This is especially so in view of the Ordinance, which states that no cases in this time period shall ever be filed and is the very antithesis of a stakeholder and creditor oriented approach. A planned, comprehensive stakeholder oriented approach would have been preferable, to strike a balance between protecting businesses suffering genuine difficulty on account of COVID-19 as against preventing abuse by people by re-structuring corporate debts and liabilities to take advantage of the lockdown and the reprieve now granted, by deploying corporate ingenuity.
The developments also seem to disregard the fact that a limitation of 3 years generally applies to such proceedings, and peremptorily prohibiting initiation of proceedings appears prima facie premature, as nobody can conclusively predict the economic and commercial scenario three years ante. If the idea was solely to protect MSME’s, an additional layer of protection could have been accorded without diluting the core of the Code, in a manner akin to requiring a report from an Information Utility (IU) in cases under Section 7 of the IBC, but not under Sections 9 or 10.
On the issue of a perceived dearth of adequate number of prospective resolution applicants, there are many factors that may have missed deliberation. First, there are many entities engaged in the very industry resolving and turning around ailing enterprises, deploying vast financial, expert and consultancy resources which even enables them to churn profits from the process. Second, preempting a lack of prospective resolution applicants, cannot possible justify a refusal to even grant an opportunity to seek resolution, in a situation where a depressed valuation may actually be more attractive to investors and more mutually beneficial schemes may be introduced. Third, the Hon’ble Supreme Court has already held that the timelines under the IBC, 2016 are not mandatory, especially when the possibility of resolution is real, which is the primary purpose of the Code, and as already stated, even defaults occurring now have a 3 year gestation period, over which a lot can transpire, both economically and commercially.
On a conspectus of the above, the shutting down of the IBC, 2016 is ill-advised and comprehensive, in-depth analysis and implementation of appropriate safeguards could have been undertaken to protect the interests of the breadth of stakeholders involved. The suspension of the IBC, 2016, coupled with the increased pecuniary jurisdiction which for now remains applicable even if the suspension is lifted, can be counter-intuitive even for MSME’s who would have been entitled to relief under the regime of the IBC. To discard the IBC, 2016 is tantamount to giving a licence to default to corporate debtors, which is to the prejudice of all stakeholders in the economy.
Of course, the above does not comment on the current limited, virtual functioning of the Courts, if at all that was a factor in the incorporation of the changes discussed above. As proactive as our Hon’ble Courts have been, there are logistical and practical challenges in taking up the full range of matters as in the pre-COVID era, in view of social distancing and lockdown protocols. This may lead one to argue that remedies against defaulters survive in other statutes, and before other legal fora. However, relegating such creditors and businesses to alternate legal remedies, which are not as specialized as the IBC and may involve lengthier processes and more burdened legal fora, cannot possibly be consistent with the regime that was propounded under the IBC, 2016. At the very least, with the continued existence of the IBC, there would have been hope on the horizon that defaulters would not have been able to go scotfree without even stepping into the arena with impunity.
Karn Bhardwaj is an Advocate practicing before various courts in Delhi and enrolled as Attorney-at-Law in the State of New York, USA. The views expressed are personal.
There is much debate on the misuse of the sedition law these days but what is not known is that Nehru’s First Amendment wanted to curb freedom of speech
The Indian Constitution has been amended 104 times and many of the modifications, including the ones passed by Parliament during the dreaded Emergency, have been extensively discussed. But there has not been sufficient debate on the amendment that started it all — the controversial “First Amendment.” It was mooted by the first Prime Minister of India, Jawaharlal Nehru, in May 1951 within 15 months of the adoption of the Constitution the previous year. The intent was to impose restrictions on freedom of speech and other fundamental rights and to save anti-zamindari laws. These amendments, which were carried out by the Provisional Parliament, were meant to overcome judicial verdicts that struck down laws that affected the Press and individual freedom.
The statement of Objects and Reasons appended to the First Amendment Act said that certain difficulties had cropped up in the working of the Constitution because of judicial decisions, especially with regard to the fundamental rights. The citizen’s right to freedom of speech and expression, guaranteed under Article 19(1)(a), “had been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.” Therefore, restrictions were sought to be fortified in the name of “public order”, “friendly relations with foreign states” and “incitement to an offence.”
There is much debate on the use and misuse of the sedition law these days but what is not well known is that one of the purposes of Nehru’s First Amendment was to fortify Section 124 A of the Indian Penal Code (IPC) under which the charge of sedition is pinned on individuals for speaking or writing against the State.
Credit goes to Tripurdaman Singh, a post-doctoral fellow at the Institute of Commonwealth Studies, University of London, for throwing light on the politics surrounding this event in his exceptionally readable book, Sixteen Stormy Days — The Story of the First Amendment to the Constitution of India, published by Penguin.
The First Amendment needs to be remembered for many things, including the first major clash between the President and the Prime Minister; the introduction of “reasonable restrictions” in Article 19(2) in the Constitution; and the idea of placing legislation in the Ninth Schedule so as to insulate them from judicial review.
It is indeed a fascinating story with many sub-plots such as the debate over “reasonable restrictions.” Nehru wanted to impose “restrictions” on freedom of speech and expression in the light of some cases pertaining to the media. In Romesh Thappar vs the State of Madras, the Supreme Court had held in May 1950 that a Madras State law barring entry and circulation of the petitioner’s magazine, Crossroads, on the ground that it disturbed “public order” was unconstitutional as the Constitution did not provide for it. Further, it said, “liberty of circulation is as essential to that freedom (of propagation of ideas) as that of the publication.” In Brij Bhushan vs the State of Delhi (the Organiser case), the magazine was subjected to pre-censorship because the then Nehru Government did not like what it was saying about Pakistan. The magazine challenged the order and the Supreme Court held that pre-censorship violated Article 19(1)(a). In Master Tara Singh’s case, the East Punjab High Court had held that Section 124(A) (sedition) and Section 153(A) of the IPC were violative of the fundamental rights guaranteed under Article 19.
Nehru felt frustrated by these judicial pronouncements and wanted to remedy the situation via the First Amendment. He wanted restrictions imposed on the freedom of speech and expression in the name of “public order”, “friendly relations with foreign states” and “incitement to an offence.” Senior parliamentarians, including members of the Congress, wanted the restrictions to be circumscribed by the word “reasonable.” Nehru did not like it one bit. In the midst of the raging controversy, he wrote to TT Krishnamachari, Congress leader and MP, and confessed that he did not like the word “reasonable” before “restrictions” because it would be an invitation for every such case to go to the courts.
However, eventually, he yielded when he found that there were many in the Congress Parliamentary Party (CPP) who disagreed with him. In fact, as the author notes, 77 MPs wrote to him asking for a free vote on the First Amendment. That was when Nehru realised that the game was up and he gave in to the popular demand to make the restrictions “reasonable.” Thanks to Syama Prasad Mukherjee, Acharya Kripalani and other stalwarts in the Congress, the Supreme Court has had the constitutional mandate over the last seven decades to examine whether the laws made by Parliament and the State legislatures, imposing restrictions on free speech, are “reasonable” or not.
Former President Rajendra Prasad, Syama Prasad Mukherjee, Acharya Kripalani, HN Kunzru and many other leading parliamentarians questioned Nehru’s intentions and warned him about the dangerous precedent he was creating. But Nehru was adamant — the judiciary and the Press had to be reined in. The leaders felt that the Constitution should, if necessary, be amended after the first general election and the constitution of the two Houses — the Lok Sabha and the Rajya Sabha. They argued that a single chamber, the Provisional Parliament, was not competent to amend the Constitution when Article 368 prescribed the procedure to be followed by the two Houses.
During the debate, Kameshwar Singh accused Nehru of “sowing the seed of executive despotism.” Syama Prasad Mukherjee had said that Nehru was “disfiguring” the Constitution by bringing in “public order” as a restriction. He said, “It is the beginning of the encroachment of liberty of the people of free India.” His words have proved to be prophetic.
The President repeatedly clashed with Nehru on the latter’s proposals and even asked senior Congress leader, Alladi Krishnaswamy Aiyyar, whether he could give his assent to an unconstitutional legislation when he is under oath to “preserve, protect and defend” the Constitution.
The First Amendment also introduced Article 31(B), to add the Ninth Schedule, which the author describes as a “Constitutional vault,” to bar judicial review of laws placed in the schedule. Syama Prasad Mukherjee warned Nehru against creating such a precedent and said, “any nonsensical law can be put there” and placed beyond judicial review. Sure enough, Nehru’s daughter, former Prime Minister Indira Gandhi, misused this provision on many occasions.
Tripurdaman Singh calls the Ninth Schedule “constitutional skulduggery” and says it granted constitutional protection to the Constitution’s abusers. All the evidence he gathers compels the author to deliver a harsh indictment. He says, “In the reckless, impetuous bid to establish the Government’s supremacy and open the constitutional doors to the Congress’ social revolution…all caution had been thrown to the wind. The creation of the Nehruvian State demanded constitutional blood — and the Prime Minister and his acolytes were willing to spill it…”
(Writer: A Surya Prakash; Courtesy: The Pioneer)
Under international law, India was not justified in denying visas to the USCIRF team which wanted to probe allegations of atrocities on minorities
Minister of External Affairs S Jaishankar has denied visas to a delegation of the US Commission on International Religious Freedom (UNCIRF). The team wanted to visit India to investigate allegations of atrocities on minorities and assess religious freedom in the country. This denial is not valid under international law.
The Peace of Westphalia, 1648, gave birth to the concept of Westphalian Sovereignty: It is the principle in international law that each State has exclusive sovereignty over its territory, protected against foreign intervention into matters which lie within its exclusive domestic jurisdiction. This principle was also interconnected with the notion of a “nation State”, which by the 18th century would be moulded to refer to a community which had a common descent or language. Eventually, these principles would age into the 20th century rise of ethnic nationalism, most infamously effectuated by the Nazi regime.
It is in this context that criticism of Westphalian Sovereignty emerged when international legal scholars saw the extent of horrors unleashed by the Nazi regime upon its Jewish citizens under the cover of sovereignty over its subjects. The ignominious premise of such a regime was that the State had absolute authority to cleanse for itself, any identity which did not assimilate within the idea of the dominant majority.
After the end of the Cold War, States began to contemplate a post-Westphalian order whereby they would intervene in human rights abuses by nations. Humanitarian intervention gained ground as a prime exception to principles of absolute sovereignty. On the flip-side, for a post-colonial nation such as ours, the term “intervention” often carries reminders of imperialist invasions. Humanitarian interventions have also been criticised by some to be Trojan horses for justifying or veiling invasions by foreign powers. This debate has been brought to India with the Government’s denial of visas to the USCIRF team, a non-governmental advisory body to the US Congress, after its denouncement of the state of religious freedom.
Jaishankar stated that a foreign entity “lacks locus standi to pronounce on the state of Indian citizens.” His ire is grounded in the USCIRF’s recommendation to the US administration in April that India be designated as a “country of particular concern”, the first time since the 2002 Gujarat pogrom. Pointing out that religious freedom had taken a downward turn in India, the USCIRF referred to the Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) issue, scrapping of the special status of Jammu and Kashmir and the Delhi riots in February, creating a “culture of impunity for nationwide campaigns of harassment and violence against religious minorities.” According to Jaishankar, statements on the fundamental rights of Indian citizens are “misrepresentation” and “unwarranted.”
However, it cannot be disputed that persecution is being collectively experienced by the minorities in this country. The names of Akhlaq, Pehlu Khan and Tabrez Ansari evoke bitter remembrances of hundreds of victims of mob-lynchings still awaiting justice. NRC-CAA protesters, who voiced concerns against fundamentally-discriminatory laws, continue to be arrested on trumped-up charges with a singular focus on activists such as Safoora Zargar, Kafeel Khan and Sharjeel Imam.
These are sharply contrasted with the “culture of impunity” which sees Union Ministers garlanding lynchers, communalising instances of violence against animals and sheltering individuals such as Kapil Mishra and Minister Anurag Thakur, who incited their supporters with hate speeches like “desh ke gaddaron ko, goli maro saalon ko (shoot the traitors)” and yet their names do not even figure in the chargesheet of the Delhi riots case. Investigations into any individual who pledges allegiance to the Right-wing seem woefully compromised. A textbook weaponisation of the media, which is complicit in demonising minorities, is also seen when the religious congregation of the Tablighi Jamaat is covered as Muslims being the carriers of Covid-19.
In today’s world, neither can a State claim total impunity relying on an absolute Westphalian principle of sovereignty, nor can foreign nations claim the right to invade a country giving the pretext of a humanitarian crisis. A middle ground has to be found in international law, that while foreign countries cannot intervene in another nation to the extent of invasion, at the same time a country cannot claim absolute reliance on the Westphalian principle for denying any kind of intervention by foreign countries altogether. We live in a global village today and what happens in one country invariably affects another.
Therefore, the correct international law principle is that a foreign country can certainly track the happenings within a country where there is prima facie proof of oppression of minorities or other such atrocities. In this uneasy slope towards violent and institutionalised oppression of the minorities, where no organ of the State seems to be upholding accountability, the idea of right to know takes root. It is the middle ground recourse between Westphalian sovereignty and humanitarian intervention. After all, States cannot reserve sovereignty over systematic persecution of citizens.
Vehement denial and disparagement of questions does not bode well for our international standing. It is a minimum requirement to ensure that the detention centres which are being built across the country are not another version of the “final solution” in this atmosphere of intolerance. Jaishankar was not justified under international law in denying visas to the USCIRF delegation which wanted to assess the allegations of atrocities on minorities in the country.
(Writer: Markandey katju; Courtesy: The Pioneer)
Laws make no sense if not enforced. And people will play with animals till we realise the right to co-existence
All of humanity needs to hang its head in shame for an inhuman deed that took place on May 27 in Malappuram, Kerala. A 15-year-old pregnant tusker, looking for food, strayed into a village where the trusting and unsuspecting creature was fed a pineapple stuffed with crackers. The fruit exploded in the elephant’s mouth ripping off a part of its face and tongue. The poor pachyderm, despite being in intense pain, ran through the streets without harming a soul till it came to the river. It stood in the water for hours, defeating all attempts by the forest department to help it, before dying a slow and excruciating death due to the injuries and asphyxia as water had gone into its lungs and trachea. Sadly, this is not the first incident of such unspeakable cruelty inflicted on animals in India. A similar incident had happened in Kollam with another elephant in April where the animal had eaten fruits laden with explosives and died a slow and painful death. So, the question is how is it that the perpetrators of such heinous crimes go unpunished when cruelty against animals is a cognisable offence under Section 428 and Section 429 of the Indian Penal Code and the country also has one of the strictest wildlife protection laws in the world? While some countries are now waking up to regulating trade in wildlife, India leads the prohibition on ivory trade. Some of the biggest triumphs for animal welfare here in the last decade saw the ban of dolphinariums in 2013, prohibition on animal testing for cosmetics in 2014, followed by a ban on the import of cosmetics tested on animals. India also prohibited the export of shark fins for use in soup and does not allow wild animals in circuses.
Yet we are confronted with heart-wrenching stories of depraved behaviour towards animals. For this to stop, we must make our law enforcement agencies aware about the rights of animals to be treated with kindness and dignity and about how grave an offence it is to subject an animal to cruelty. Punishment should be quick and stringent. Law enforcement agencies must not always wait for activist judges to lead the way in this regard. Plus, we, as a society must teach our children the basic truth that the world is meant to be shared by all God’s creations and we must learn to live together with them. They have as much right to live on this planet as we do. In fact, animals form a vital part of the biodiversity and each creature has a role to play in the circle of life. If we disrupt that, we will have to bear the consequences of it.
(Courtesy: The Pioneer)
The new labour laws being enacted by the Centre and various State Governments might create another lockdown even as the economy limps back to normalcy after having all but collapsed
In what is perceived as possibly the last phase of the lockdown, with States being given the powers to implement relaxations by the Centre and economic activity once again being started across urban and rural India, a wave of resentment is brewing among the organised sector of the working class and trade unions in the country.
Indeed, images of tens of thousands of migrant workers in dire straits, walking without food and water in this scorching heat on highways and streets to unknown destinations, especially in the Hindi heartland, have shocked the national conscience, even while death and highway accidents of the workers seem to have become routine.
It is in this context that the new labour laws being enacted by the Centre and various State Governments might create another lockdown, even as the economy limps back to normalcy after having all but collapsed, especially in the urban sector, with the agricultural economy on the threshold of a disaster despite a very good harvest. Indeed, the almost 77 million tonnes of foodgrains lying in the Food Corporation of India (FCI) godowns, and the huge output post-harvest season, especially in States like Punjab, Haryana, Western Uttar Pradesh (UP) and Maharashtra, are bound to lead to another crisis, especially when the monsoon season sets in.
With the BJP-led Central Government refusing to release the overflowing foodgrain for the jobless and homeless migrant workers, or the poor, even while rejecting the proposals of several top economists like Amartya Sen, Raghuram Rajan and Abhijit Banerjee, the rural economy will yet again find itself in a Catch-22 situation. Already, the crisis of the past has not been resolved: For instance sugarcane farmers in Western UP have largely not been paid the minimum support price while their payment from the mills is still pending. A similar situation might erupt in Maharashtra with onion farmers among others.
The migrant workers, who have gone back to their hometowns and villages, are not returning anytime soon despite the booster announced by the Union Finance Minister, Ms Nirmala Sitharaman. Sources say that the financial “bonanza” announced by the Centre might just prove to be yet another “jumla” while largely benefitting certain industrialists close to the Delhi regime. The real estate and construction industry has not recovered and even the cream of the industry, Information Technology has faced retrenchment of employees.
Almost 10,000 workers of a successful and cheap brand of biscuits like Parle G had to be sacked just because there was no purchasing power in small towns and rural India to buy these glucose biscuits. Hundreds of employees have been sacked in media organisations in recent times with not even a whimper of protest.
With coal mines and airports being privatised, among other public sector units (PSUs), a collapsing economy, faced with a gigantic unemployment problem among the organised and unorganised workers, including among the educated and white-collar professionals, the country can slip into a major crisis yet again. Almost 40 million workers are slated to lose their jobs. Indeed, post-demonetisation and Goods and Services Tax (GST), the small and medium-scale industry had virtually shut down, affecting tens of thousands of daily wagers and small and medium entrepreneurs.
Even flourishing industrial zones like Surat in Gujarat had risen in revolt before the last Lok Sabha elections. It took major maneuvering and persuasion by Home Minister Amit Shah to get the pro-BJP traders to the polling booths. Indeed, sociologists had earlier predicted that the mass protests against the National Register of Citizens (NRC) and Citizenship Amendment Act (CAA) all over the country were also triggered by mass joblessness and a state of perpetual anxiety about a stable future.
Besides, after the shocking and horrifying images of the poor and starving migrant workers, men, women and children, have hit social media, and the Western media, the international image of the country has taken a big beating. This kind of a national trauma on such a massive scale and as a daily and relentless public spectacle for almost two months has not been seen in any part of the world during the pandemic, not even in the sub-continent, in Africa or the Middle-East. Surely, India is on a sticky wicket not only in terms of its Gross Domestic Product (GDP) or growth rate and per capita income. Its moral and ethical core has been disrupted and proved crudely transparent in front of the whole world.
It is in this pessimistic context that the one-day hunger strike by the leaders of 10 Central Trade Unions on May 22 against the new labour laws rattled the Central Government, which is still to find its economic scaffolding.
The demands of the unions included restoration of labour laws that have been changed or their implementation put on hold in about 10 States consisting of both BJP and non-BJP ruled ones. In a joint petition to Prime Minister Narendra Modi, the union leaders sought immediate relief to stranded workers and arrangements for safe return to their homes. They also demanded immediate halt to indiscriminate privatisation of PSUs. Even as the trade unions approached the International Labour Organisation (ILO), the Government refused to engage in a dialogue with the leaders and they were detained for violating the restrictions of the lockdown. However, the trade unions have said that this protest was just the beginning and their struggle would continue.
Amid all this chaos, experts have declared that the latest Government booster for the small and medium enterprises is just not enough. It should be noted that the majority of the working class in India do not even fall under the organised or formal sector. They constitute almost 93 per cent of the workforce, have no trade union cover or other rights such as work guarantee, fixed-wage hours or wages, maternity leave, provident fund, pension and so on. They are just “free labour” out to be exploited by all concerned. Half of them are women, Dalits, extremely backward castes, landless labourers and the poorest of the poor. Understandably, the labour laws have been declared draconian by the unions, whereby the lockdown has been used to bulldoze them.
Some of them are outrageous, like increasing the work hours per day from eight to 12 hours, something the labour movement had gained after the famous May uprising in the Hay Market in Chicago in the 1830s, celebrated all over the world as May Day. The suspension of a large number of labour laws for three years by UP and the Madhya Pradesh Government’s decision to allow companies to “hire and fire” workers coincided with Gujarat, Himachal Pradesh, Haryana, Rajasthan, Punjab, Bihar, Odisha and Maharashtra increasing the daily working hours. Significantly, the BJP trade union, BMS, did not join the protest while the Congress trade union, INTUC did, though the Congress State Governments, too, are tagging along on the new labour laws.
Among the “draconian measures”, the Yogi Adityanath Government in UP has made 38 laws meaningless for almost three years, including the Industrial Disputes Act, Trade Union Act, Equal Remuneration Act, Maternity Benefit Act, Act on Occupational Safety and Health, Interstate Migrant Labour Act and the Contract Labour Act.
The BJP-ruled Madhya Pradesh Government has ushered in serious changes in the Factories Act, Contract Act and Industrial Dispute Act. Hire and fire seems to be the new pandemic doctrine, with most workers’ rights being taken away, including regarding wages, safety and compensation, and contractors and industry running without any regulations. May 22 marked the beginning of a new chapter in the working class’ struggle in India, even as the tragic narrative of mass migration of the unorganised workers continues relentlessly. Will it mark a paradigm shift in the current scenario? Only time will tell. But for now the workers are not giving up.
(Writer: Amit Sengupta; Courtesy: The Pioneer)
The plans that were devised by the Centre under the provisions of the Disaster Management Act, 2005, did not foresee such a huge calamity and the humanitarian crisis emerging out of it
The complete lockdown of the country within three-four hours of the announcement regarding it in a televised address by Prime Minister Narendra Modi and the plight of migrant workers around the country, forced to trudge back to their hometowns, thousands of kilometres away, hungry, thirsty and tired, reflect that India was not prepared for the impending disaster. This is despite the fact that the danger had been looming over us since the outbreak of the Coronavirus in China months ago.
An overconfident Government had not thought it prudent to devise a plan for the efficient management of the pandemic that has brought developed countries, with better healthcare systems than ours, to their knees.
The Government was ill-prepared to handle a disaster, the likes of which this world has not seen after the 1918 Spanish fever which infected nearly 500 million people worldwide and killed an estimated 30-50 million.
Obviously, the plans that were devised by the Centre under the provisions of the Disaster Management Act, 2005, did not foresee such a huge calamity and the humanitarian crisis emerging out of it. Disaster management concentrates on making arrangements to diminish the impact of a calamity. Failure to make such an arrangement could prompt large-scale human casualties, loss of income to the masses and losses to India Inc, which in turn, prove disastrous for the economy.
Hence, plans relating to disaster management should pursue the nature of disaster vis-a-vis its management. The Government mainly functions based on the enactments made by the legislature. Hence, all the programmes, conceived plans and guidelines would be within the framework of the legislations made in the said regard.
The United Nations General Assembly (UNGA) decided to observe the ’90s as the International Decade for Natural Disaster Reduction (IDNDR). It initiated a global campaign towards creating socio-economic strategies for countries during natural disasters. Now, due to the UNGA’s efforts, many countries around the world have disaster related legislations. Pursuant to the same, in 1999 the Indian Government, too, set up a High Powered Committee (HPC) on disaster management.
Thereafter, a series of catastrophic natural disasters such as the Gujarat earthquake in 2001 and the tsunami in 2004, led to the enactment of the Disaster Management Act, 2005. Though it was the first step in the right direction, the entire legislation was drafted with a myopic view. The definition of “disaster” under Section 2(d) of the Act defines disaster as a catastrophic, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes or by accident/negligence which results in substantial loss of life or human suffering or damage to property or degradation of the environment and is of such nature or magnitude that it is beyond the coping capacity of the community of the affected area.
A reading of the aforesaid definition shows that the same has been drafted keeping in mind disasters such as tsunamis, cyclones, earthquakes, industrial or fire accidents and so on, vis-a-vis specified areas. It did not visualise a situation wherein a disaster may be caused because of cross-border viral contaminations spreading throughout the country. The use of the words “any area” in the definition of “disaster” is very confined. It relates to only a particular area within the country wherein such a natural disaster occurs. On the whole, the matter of public health has been unable to find any space in the legislation.
The Act also provides for establishment of a number of statutory bodies such as the National Disaster Management Authority (NDMA), the State Disaster Management Authorities (SDMAs), advisory committees, executive committees and sub-committees under the Government. The establishment of so many committees and authorities does not seem to have a strong logical foundation. There are such overlapping duties found among various authorities in the Act that they are bound to confuse people. Further, the coordination among these bodies appears to be very cumbersome.
Though Section 3 of the Act contemplates establishment of the NDMA with the Prime Minister as its Chairperson and other members, not exceeding nine, being nominated by him/her, no qualification has been specified for the members. This should have been done because it is an authority at the national level, dealing with an issue of national importance. In the context of the political scenario of our country, the appointments to the national authority can be strongly influenced by political motives, which defeats the whole purpose.
Section 6 of the Act contemplates the powers of the national authority and it is empowered to formulate policies, plans and guidelines in relation to disaster management. However, these would be in consonance with the definition of “disaster” contained in Section 2(d) of the Act, which is quite narrow.
Obviously the entire Act would be implemented in the backdrop of the definition of “disaster” contained in Section 2(d). Therefore, all the plans would be short-sighted, confined only to disasters of a particular nature which relate to particular areas.
Our lack of preparedness to meet a pandemic like the Coronavirus requires an amendment to the definition of “disaster” as contained in the Act, so as to enable the Government to formulate plans and policies in consonance with it.
At present, we are witnessing an exodus of migratory workers from the cities, deprivation of livelihood of daily-wage earners, break in supply chains, hardship in distribution of essential commodity to those who live Below the Poverty Line (BPL), hospital management/facilities and so on.
We have to devise plans in such a manner that they minimise the adverse effects of a disaster as enormous as the Coronavirus outbreak.
Anticipating a disaster is one aspect and post-disaster management is another. In order to anticipate a disaster and to formulate a policy, the definition also should include such disasters which may affect the whole country and not just be confined to the extent of those disasters which are limited to a specific area. If such an amendment is brought in, a suitable plan would be formulated by the competent authorities under the Act.
Section 42 of the Act empowered the Central Government to constitute a National Institute of Disaster Management (NIDM), the main function of which is to develop, undertake research and documentation in relation to disaster management.
The NIDM also conducts programmes and formulates comprehensive human resource development plans covering all aspects of disaster management. But as stated earlier, the entire action would be directed against only those aspects which can be termed as a “disaster” in accordance with Section 2(d) of the Act.
Section 35 contemplates measures to be taken by the Government in relation to disaster management. The Central Government shall coordinate with all the Ministries, State Governments, the national and State authorities. Though Section 35 empowers the Central Government to take measures, in the light of the narrow definition of disaster, it would be very difficult to visualise a situation that has arisen right now.
No disaster can be ever dealt with effectively only through administrative set-up, alienating the community as a whole. But unfortunately, the Act entirely ignores this very important aspect. The Act is implemented entirely through the Government system.
Now the Government has to bring in a suitable amendment to the 2005 Act to effectively deal with such situations as presented by the Coronavirus pandemic. More particularly the definition of “disaster” under Section 2(d) has to be amended so as to bring into its fold calamities/disasters like the one which the country is facing now in order for the Government to be able to effectively handle the present calamity.
Unfortunately, the Disaster Management (Amendment) Bill, 2016 moved by Mullappally Ramachandran for the amendment to the Disaster Management Act, 2005 also does not contemplate any amendment to the definition of “disaster.” It only proposes an amendment to Section 11 and Section 35 which relate to preparation of plans and stipulating guidelines. But the same would be futile unless the definition is amended.
(Writer: Chittarvu Raghu; Courtesy: The Pioneer)