The Centre has prepared a bill to raise the age for allowing sale of cigarettes and tobacco products to 21 years from the current 18 years.
The government has drafted the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Act, 2020.
The provision for raising the age limit to 21 years is part of the new bill being piloted by the Union Health Ministry. The bill seeks to amend further the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
Under the amendments proposed in the bill, "No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product - (a) to or by any person who is under twenty-one years of age, and in an area within a radius of one hundred meters of any educational institution."
Section 7 is being amended to say, "Provided that the trade and commerce in cigarette or any other tobacco product shall be in sealed, intact and original packaging." It also adds a provision, "No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him is having minimum quantity as may be prescribed."
Contravention of this Section 7 will lead to imprisonment of two years or fine going up to Rs 1 lakh and second conviction leading to prison for 5 years or fine going up to Rs 5 lakh.
The bill also has a provision for coming down on manufacture and sale of illicit cigarettes and tobacco products. Sale of illicit products will lead to punishment of imprisonment of 1 year and a fine of Rs 50,000 and a second conviction of imprisonment of 2 years and Rs 1 lakh. The fine on manufacture of illicit cigarettes is imprisonment of 2 years and fine of Rs 1 lakh.
The penalty for smoking at restricted areas is being increased from Rs 200 to Rs 2,000.
The amendment on advertising says, "No person shall directly or indirectly advertise cigarettes or any other tobacco products through any medium and no person shall take part in any advertisement that directly or indirectly promote the use or consumption of cigarettes or any other tobacco products."
In the Preamble, after the words "…..take concerted action to eventually eliminate all direct and indirect advertising, promotion and sponsorship concerning tobacco" the words, "AND WHEREAS, India is a signatory to the World Health Organization Framework Convention on Tobacco Control 9WHO FCTC) adopted in Geneva, Switzerland on 21st day of May, 2003 which came into force on the 27th day of February, 2005" will be inserted.
Prayagraj, Dec 25 (IANS) In a landmark judgment, the Allahabad High Court has said that "expressing dissent on law-and-order situation in a state is a hallmark of a constitutional liberal democracy like ours, and the same is constitutionally protected under Article 19 of the Constitution (that guarantees right to freedom of speech and expression)".
The court made the observation while quashing an FIR lodged against a person for his alleged remarks that the "Chief Minister of Uttar Pradesh has transformed the state into a jungle raj in which no law and order prevails"." Allowing a writ petition filed by one Yashwant Singh, who had made this remark against Uttar Pradesh Chief Minister Yogi Adityanath on his Twitter handle, the High Court said it did not "find, even remotely, a commission of offence" under two sections mentioned in the FIR.
The FIR was registered on August 2, 2020 under Sections 500 (defamation) and 66-D (offence of cheating by personation by using computer resource) of Information Technology (Amendment) Act at Bhognipur police station in Kanpur Dehat district. The FIR alleged that Singh had also made reference to various incidents of abduction, demand of ransom and murders in his tweet.
The counsel for the petitioner challenged the FIR before the court, contending that right to comment on the affairs of the state is well within his constitutional right envisaged under Article 19 of the Constitution. The counsel said: "Mere dissent does not amount to criminality. The FIR has been lodged with a malicious intention to coerce the petitioner to stop expressing his dissent against the state government. Hence, no offence is made out against him."
However, during the court proceedings, the state counsel opposed the submissions of the petitioner's counsel. While quashing the FIR and the entire consequential proceedings against the petitioner, a division bench comprising Justice Pankaj Naqvi and Justice Vivek Agarwal said: "We, after analysing the above provisions regarding allegations made in the FIR, do not find even remotely a commission of offence under Section 66-D, as the provision relates to cheating by impersonation."
In a major reshuffle, the Supreme Court collegium has recommended to the Centre the transfer of four Chief Justices of high courts including Andhra Pradesh High Court's Chief Justice JK Maheshwari to the Sikkim High Court, weeks after Chief Minister Jagan Mohan Reddy had complained to the Chief Justice of India about the state's top judiciary. In an unprecedented move, the Andhra Pradesh Chief Minister, on October 6, had written to Chief Justice of India (CJI) SA Bobde alleging that the state High Court was being used to "destabilise and topple" his democratically-elected government.
The collegium headed by the Chief Justice of India, in its meeting held on December 14, also recommended elevation of five high court judges as Chief Justices of different High Courts including Justice Dr S Muralidhar whose notification transferring him to Punjab and Haryana High Court close to mid night of February 26 had created a huge controversy, reported news agency Press Trust of India.
Justice Muralidhar has been recommended to be elevated as Chief Justice of Orissa High Court. Justice Muralidhar's transfer from Delhi High Court to Punjab and Haryana High Court was notified on the day a bench headed by him had pulled up Delhi Police for failing to register FIRs against three BJP leaders for their alleged hate speeches which purportedly led to the recent violence in northeast Delhi.
As per recent collegium's recommendations posted on Supreme Court's website, the collegium, besides recommending transfer of Chief Justice Maheshwari to Sikkim High Court, has also recommended the transfer of Sikkim High Court Chief Justice AK Goswami to the Andhra Pradesh High Court.
It has approved the proposal to transfer Telangana High Court Chief Justice RS Chauhan as Chief Justice of Uttarakhand High Court while Orissa High Court Chief Justice Mohammed Rafiq has been sent to Madhya Pradesh High Court.
Justice Sanjay Yadav of Madhya Pradesh High Court to Allahabad High Court; Justice Rajesh Bindal of Jammu & Kashmir High Court to Calcutta High Court;
Jammu, Dec 8 (IANS) Justice Rajesh Bindal was on Tuesday appointed the acting Chief Justice of the common High Court of J&K and Ladakh on Tuesday in wake of the retirement of Chief Justice Gita Mittal.
The notification issued by the Union Law and Justice Ministry said that the President had, in exercise of powers conferred by the Constitution's Article 223, appointed Justice Bindal, senior most judge of the common high court "to perform the duties of the office of Chief Justice of that high court with effect from 9th December, 2020 consequent upon the retirement of Kumari Gita Mittal, Chief Justice, common high court for the Union Territory of Jammu and Kashmir and Union Territory of Ladakh".
A major thrust should be towards improving and consolidating selection processes so that only people with integrity get elevated to the top
A constant and consistent pattern is emerging in the corridors of the Indian judiciary, particularly the apex court. The design, indicative of attacks on the Chief Justices of India (CJIs), past, present or incoming, is neither a desirable sign for the judiciary nor is it, in any which way, a healthy measure of our democracy. Though one cannot, in truth, deny that there have been instances of corruption in the judiciary, but to taint and paint all with one brush is in no way serving the nation or standing up for that which is right. Those who make unfounded allegations vitiate the atmosphere, reduce the strength and independence of the judiciary and gradually make it supine and weak. Subsequently, over a period of time, due to the constant and consistent attacks on the judicial system, it begins to crumble and has no option but to start leaning towards the executive for support.
When the judiciary begins to shake and eventually tremble, anticipating the unending onslaught of attacks, then the entire system cries foul and finally alleges that the judgments are not strong enough to ensure that justice is delivered in every possible sense. So, at a time like this, it is prudent to ponder whether Public Interest Litigations (PILs) do more harm to the judicial system than to the individual judges. It is a fact, that in spite of a major hue and cry, a particular judge of the Supreme Court continued unaffected and happy till his retirement. No media campaign or public scrutiny could alter this position. But it is an equally disturbing truth that the image of the judiciary not only got dented but also went down in the eyes of the citizens of the country.
That poses a very pertinent question to all stakeholders in our democracy: is this trend healthy and does it serve any purpose to any constituent? The larger question also related to the issue is whether this continuing trend shall visibly shake the citizenry’s faith in the judicial ecosystem? Because, make no mistake about it, the country’s judicial ecosystem and all the stakeholders in it have been facing erosion one inch at a time owing to multiple events which have unfolded in the recent past.If this goes unchecked, we are heading for real bad times that will not just impact the judiciary but will threaten democracy itself.
The one feasible option forward is to improve the system, alter the way it functions today, rather than demolish it brick by brick, with allegations and complaints. A major thrust should be towards stressing on the need to simultaneously improve and consolidate the judicial system, so that only individuals with impeccable integrity get selected by the Collegium and make it to the top. Most importantly, if the system is strong, then individuals do not matter in actual terms.
The judicial system is a complex jigsaw puzzle with many entities from the Bar and the Bench, the ever-growing number of litigants, the media, the restless people of the country empowered by the social media and PILs — an array of coteries that keep fighting among themselves for one reason or the other. In the end, if the judicial processes in India do not end up becoming robust and protected, all the stakeholders in the system would end up being the major losers. It is to be first acknowledged that there are a series of attempts being made by outsiders to precipitate fights and differences between the Bar and the Bench and these should be collectively thwarted by the entire judicial system.
People who are placing individuals and individual interests over and above institutional interests are not bothered about the system and in the process end up committing a great disservice to the nation. Needless to say, they ultimately forget that they would end up being the biggest losers in the long run. However, what remains unrealised is that the real casualty in this prolonged tug of war is the sanctity and the institutional integrity of the system itself. Such people will realise finally that by fighting some robed luminaries, they may emerge as crusaders in the short-term but in the long haul end up causing greater damage to the system to which they owe everything, and destroy its credibility making it vulnerable to the core. Does such a judicial system serve any purpose?
The CJIs are such luminaries who come with the heft of decades of dedicated service in the judiciary and a great service to the nation at large. The testimony of evidence for this emanates from the hundreds of judgments penned in their capacities as judges at various High Courts and subsequently upon their elevation to the apex court. A flurry of allegations against them at the time of elevation shows the judiciary in a bad light and causes the people to lose faith in them and question their every move. It is the solemn duty of all stakeholders in the Bar and the Bench to wake up to this bid to tarnish individuals and thereby weaken the system. It is time to pause, introspect and react.
(The writer is a Special Correspondent of The Pioneer)
The labour law reforms are being bandied about as the most crucial second generation amendments that will make it easier to do business but must not compromise workers
The Narendra Modi Government recently passed three Bills on labour reforms enshrined in three labour codes, namely The Industrial Relations Code, 2020, The Occupational Safety, Health and Working Conditions Code, 2020 and The Code on Social Security, 2020. Along with The Code on Wages, 2019, passed by the Parliament last year, these four labour law reforms are being bandied about as the most crucial second generation amendments that will make it easier to do business, improve the competitiveness of the Indian industry, make it a manufacturing hub and pursue the “Make in India” agenda successfully. Even as the landscape of these legislations is vast, there are four areas which will have far-reaching implications for the way the Centre and the States will be regulating businesses and ensuring the welfare of workers. These include (I) consolidation (call it merger) of existing 29 Central Labour Acts into four codes; (II) increase in the threshold for retrenchment, closure or lay-off for a firm (without Government permission) from existing 100 to 300 workers; (III) giving greater flexibility to the States in enacting legislation and (IV) providing for universal social security for workers. At the outset, let us recognise that labour is on the Concurrent List of the Constitution; therefore, both the Union Government and the States have the power to legislate on the subject. Hitherto, there were 29 Central Labour Acts besides 200 State-enacted laws and amendments. This meant that a company was required to take a number of licences, registrations, permissions, renewals and file numerous returns periodically under different Acts. For instance, it had to file one annual return each under the Payment of Wages Act (1936), the Minimum Wages Act (1948) and the Payment of Bonus Act (1965).
Shockingly, even a MSME (micro, small and medium enterprise) is required to maintain at least 10 different formats of wage registers, four formats of accident registers and four of muster rolls under different Acts. The regulations at the State level are even more complex. Each State enjoys the right to formulate specific rules with respect to applicability thresholds, forms, formats, calculations, dates, frequency of submissions, filing types (paper-based vs. digital) and so on. This results in different due dates, multiplicity of forms and formats, duplication in record-keeping requirements, redundancies, complex procedures, ambiguous interpretations and so on. As a result, companies which operate in several States face a nightmare.
Consolidation of the extant 29 laws into four codes should help firms in getting rid off this nightmare. They can look forward to a significant reduction in the number of licences, registrations, renewals, returns and registrations earlier required under different Acts. As a result, the compliance burden will go down. For instance, under The Code on Wages, 2019, a firm needs to file a single annual return against three different annual returns earlier. Correspondingly, at the State level too, businesses will be unshackled.
As regards (II), under the extant law, employers of industrial establishments such as mines, factories, plantations and so on, with at least 100 workers, were required to take prior permission of the Central or the State Governments before retrenchment or closure of workers. Together with a myriad of regulations and compliances, which increase in proportion to the scale of operations, this was a major impediment in the way of firms growing in size and creating more jobs. It also takes away the flexibility of firms to adjust their labour deployment in sync with changing demand conditions. It affects their ability to stay afloat in a competitive environment especially when the economy is in a downward phase. It also prompts them to hire contract workers, which is not a good sign especially for their social security. This has seriously impacted formalisation of the economy. Out of about 63 million enterprises, only one million or 1.5 per cent are in the formal sector.
This preponderance of the so-called unorganised informal economy (it accounts for roughly 50 per cent of the Gross Domestic Product and 80-90 per cent of the workforce) is the inevitable outcome of imposing such restrictions.
The increase in threshold under The Industrial Relations Code, 2020 should come as a big relief, as firms having up to 300 workers will get the much-needed flexibility to adjust to the changing business environment. But what is the sanctity of fixing the threshold at 300? Why should enterprises employing workers in excess of this be subjected to approval?
In the contemporary economic milieu, wherein the ability of firms to compete depends largely on the scale of operations (even start-ups in a matter of few years get into the position of giving jobs to thousands of workers), imposition of such arbitrary thresholds viz. 100 or 300 or even higher — a legacy of the socialist era — is totally out of place. This needs to be done away with.
The Code provides for “fixed-term employment” through contract workers on a pan-India basis. Currently, companies hire contract workers through contractors. With the introduction of fixed-term employment, they will be able to hire workers directly under a fixed-term contract, with the flexibility to adjust its tenure based on the seasonality of industry. These workers will be treated on a par with regular workers. It will be a win-win for both the companies and those aspiring for jobs.
The Code does not take away the workers’ right to go on strike. However, it has been made mandatory to give 14 days’ notice for giving time to sort out differences through harmonious discussion during this period. Doing away with multiplicity of unions and introduction of the concept of a “negotiating union” is a welcome move. Coming to (III), under the present law, States have limited powers to exempt factories from labour laws. For instance, The Factories Act, 1948 allowed exemption from its provisions in cases of public emergency only for a period of three months. For making changes or giving exemptions from the law for longer duration, they had to approach the Central Government. Now, the Union Government has given a lot of flexibility to States while implementing these Codes. For instance, The Occupational Safety, Health and Working Conditions Code, 2020 empowers the States to exempt new factories from any of the provisions of the new law for more economic activities and employment opportunities. No timeline for giving exemption to factories is prescribed as against three months at present. It also exempts existing establishments from any of the provisions of the new Code in case of an emergency provided that certain conditions are fulfilled.
Under the Industrial Relations Code, 2020, States can allow easier retrenchment, or closure norms for more firms through a notification, without the need to seek the Centre’s approval. For instance, unlike in the past when they could increase the threshold only after seeking the approval of the President and then getting it passed by the legislature (16 States had hiked the threshold to 300 workers following this lengthy procedure only), now a State can do it by issuing an executive order.
The State can also exempt new establishments from “any or all provisions” of the law dealing with industrial disputes, retrenchment and trade unions “unconditionally” for a specific period of time as it thinks fit. This can be done in “public interest.”
Though, prompted by the dire need to press the accelerator for industrialisation at a fast pace, these provisions may have given too much discretionary power to State bureaucrats. They need to use these judiciously and while granting exemptions, they should ensure that workers’ interests are not compromised.
As regards (IV), The Code on Social Security, 2020 provides for universal social security for workers by expanding the ambit of Employees’ Provident Fund Organisation (EPFO) and Employees’ State Corporation of India (ESCI) and setting up of a social security fund to cover around 400 million unorganised sector workers. However, some clauses are a bit restrictive. For instance, only sites with 10 or more building and other construction workers are covered. Likewise, for Provident Fund, only establishments with 20 or more workers are covered. This will result in exclusion of millions of MSMEs.
Worryingly, the Code does not stress on social security as a right and does not make any reference to its provision as stipulated by the Constitution of the country. Plus, it does not lay down a clear date for enforcement. This will leave workers vulnerable without social protection. It is vital that social security protection be made universal for the entire nation’s workforce. However, the Code makes whimsical categorisations that will deprive millions of working poor of their rights.
While the Code defines multiple categories, most are obscure and have not been revised to determine whether a worker belongs to the organised or unorganised sector. For instance, platform and gig workers are not defined as part of the unorganised workforce, even though lakhs of people are employed as such. Similarly, the word “establishment” in the Code should have been altered to make sure that all workers come under the ambit of social security protection.
To sum up, the enactment of the four Codes is a big leap forward in labour reforms but there still needs to be some more thought put into the protection of workers. As for the outcome, a lot will depend on how the States respond as they are the ones who have to implement, frame and notify the rules and do the follow up. If, they don’t and keep the regulations complex, the intended benefits won’t percolate down to the last worker. Both the Centre and States have to work towards this.
(The writer is a policy analyst)
Restrictions need to be placed to account for situations where the independence of the judiciary and of the civil services could be threatened
Like most people, I enjoy listening to music in my free time. Other than being an expression of art, songs are often a great medium to get a message across. Some are subtle where you have to find understated and intelligent references to the message that is hidden. However, at the same time you have songs with lyrics like “Sushant superstar, you were Bihar’s treasure... The DGP came, he faced attacks but he took the case to the CBI. (The DGP) is the pride of the nation...” It is safe to say that this music video, which was released on the same day as the voluntary retirement of the DGP, can be a lot of things but “subtle” is certainly not one of them.
The release of the music video and the reports of Gupteshwar Pandey (the DGP in question) making a foray into politics, do, however, give us an opportunity to examine the situation in the country and the question of ethical conduct by certain individuals from the Indian civil services and the judiciary, two pillars on which the modern Indian state stands. The title of this week’s piece may seem a tad ironic, especially considering that the writer himself was one time a “babu” and is now in active politics. However, having joined politics close to a decade after leaving the civil services, I believe that I can offer a unique perspective on the topic.
To be clear, this is far from the first time questions regarding the ethics of appointment or nomination of individuals who come from the civil services or the judiciary have been raised. Even in a meeting of the Constituent Assembly, this issue was discussed. Professor KT Shah moved an amendment, which contemplated restricting judges who had served for more than five years in the Supreme Court or on any of the High Courts, from being appointed to any executive office or Ministers in a Government. The intent, as explained by a supporter of the amendment, was imperative because “if the temptation of being appointed to other high positions after retirement is not removed, it will also be liable to be abused by the Executive or by any party in power and they may hold out such temptations which might affect the independence of the judiciary.” The amendment was ultimately rejected by Dr BR Ambedkar because at the time he believed that this was only a theoretical protection as the “opportunity for the executive to influence the judiciary is very small”. While there is no such restriction, the Constitution of India does lay down administrative details like retirement of judges and remuneration in the Constitution. Similarly, civil servants are granted privileges like pension after retirement. Furthermore, removing a civil servant from service is an extremely difficult proposition. The intent of such protections is to ensure that both civil servants and judges carry out their duty as contemplated under the Constitution without fear or incentive to act otherwise.
Dr Ambedkar, in all probability, believed that the individuals, who would form part of the judiciary or the civil services, would exercise their personal ethical framework and to this extent the issue of independence of these institutions would not be tarnished. However, it is becoming increasingly obvious that there is a need for us to legislate ethics and punish its abdication.
Most recently from the judicial sphere, you have the case of the former Chief Justice of India, Ranjan Gogoi, getting nominated to the Rajya Sabha. This move drew sharp criticism from judges and lawyers alike, pointing to the fact that his appointment came barely months after his tenure as Chief Justice ended. Such is the criticism around the appointment that a news personality noted that the DGP’s move to take voluntary retirement and possibly join politics would be akin to “doing a Gogoi.” Another move that attracted criticism was of a Central Vigilance Commissioner joining a large corporate house immediately after retirement. But like I said, this is not about one particular instance. According to a study done by Vidhi, a legal think tank, close to 70 out of over a hundred retired judges have taken up assignments after their retirement. Unfortunately, this is inevitable considering the number of statutory authorities that require a retired judge to hold office under their parent statute.
Therefore, what is the way ahead? It is obvious that relying on the integrity of individuals to take the right call every time is not a tactic that has worked. While there are a number of individuals who have displayed and continue to display courage, integrity and a strong conscience, the damage by a few to the institutions that they have served can be so scarring that its impact would be felt on the core foundations of a democratic republic such as ours. Therefore, there is a need to legislate to account for situations where the independence of the judiciary and of the civil services may be threatened. One solution is to do away with post-retirement posts and to appoint only senior personnel who are currently serving as judges or civil servants. Another option is to legislate like the US has done, where in case of former senior civil servants (in certain departments) there is a permanent ban on appearing before Government authorities on matters where they may have participated personally or substantially. An alternative restraint could be establishing a separate authority like the Union Public Service Commission (UPSC), as former civil servant Anil Swarup talks about in his book Ethical Dilemmas of a Civil Servant. Swarup suggests that the UPSC can be tasked with shortlisting candidates for post-retirement assignments instead of leaving such decisions to the whims and fancies of any Government in power. I would add that the criteria for such appointments should be made public and be through a points system. There are many possible solutions but in order to implement any solution, we need to first accept that there is a problem and that there is a dire need for a structural solution.
As said by Dr Martin Luther King, “The arc of the moral universe is long but bends towards justice.” Therefore, I am hopeful that in the long run our institutions will survive, not least because of the many righteous individuals who serve these institutions. I am hopeful that the examples that exist today will only serve as examples to future generations to keep their guard up, similar as to how examples from the Emergency serve as examples for today. However, with the benefit of hindsight, if Dr Ambedkar had a chance to discuss Professor KT Shah’s amendment in the Constituent Assembly today, I have a feeling that the outcome would be quite different.
(The writer is a former IPS officer, a former MP and currently a member of AAP)
Over the years, the courts have changed the face of justice in India and focussed on issues where the executive has failed in its duty
In any system of governance, the judiciary is always an essential part of civilised life. In Indian history, too, kings played a very important part in dispensing justice. In the days of yore, population pressure was less, crimes were few as people were more law-abiding, resources were available in abundance and the system of justice was not stretched like it is today. By and large the judicial system followed the diktats of the rulers and it sufficed. However, with the advent of democracy, modern jurisprudence developed. Independent jurisprudence got a big boost after the Magna Carta was signed by the King of England in 1215. Now, people in most parts of the world recognise the judiciary as an independent pillar of Government. It is complementary to the executive and the legislature but independent from the other branches of Government, as judicial accountability enshrines the principle of neutrality.
The beginning of codified common law in India can be traced back to 1726 when a Mayor’s Court in then Madras, Bombay and Calcutta was established by the East India Company. Needless to say, the courts changed the face of justice in India and focussed on issues where the executive failed in its duty. This judicial assertion started from the Kesavananda Bharati case when it ruled that basic features of the Constitution cannot be changed. The enunciation of the doctrine of Public Interest Litigation (a relaxation on the traditional rule of locus standi) by Justice PN Bhagwati opened the courts to socially-disadvantaged sections of society and course correction in the functioning of the executive.
In the recent past, many landmark judgments in the field of environment have endeared judges to the people of the country. Notable among them were Justice Kuldip Singh and Justice AN Verma. The 1996 Godavarman case turned the trajectory of forest and wildlife management in India. Despite the enactment of the Forest Conservation Act, 1980 and the Wildlife Protection Act, 1972, the lackadaisical attitude of the Central and State Governments put forests and biodiversity at great risk. Interventions by courts in the last 24 years forced executive agencies to act for the smooth implementation of constitutional provisions for the conservation of forests and wildlife resources.
India was one of the earliest nations in the tropical world to implement working plan provisions for managing forests sustainably. However, the working plans were almost forgotten by it. The Supreme Court, through its interventions, streamlined forest management in the country and forced respective governments to prepare and regulate management of forests through working plans. Now the results are visible on the ground.
Similarly, rampant mining in forest areas is being closely monitored by the apex court. This positive action of the Supreme Court struck a balance in restoring the constitutional obligation of the executive. Yet another instance of excellent intervention relates to declaring Ganga River a live entity by the Uttarakhand High Court. Such decisions have touched the lives of millions of our citizens. What is most significant in this regard is the recognition of the rights of those who cannot speak for themselves like trees, animals and rivers which are crucial for sustaining life on Earth. The establishment of the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) in the country, which now has an impressive collection of nearly Rs 50,000 crore in its kitty, was possible on the direction of the Supreme Court.
In yet another epoch-making intervention, the apex court came down heavily on the real estate-politician-bureaucrat nexus in Noida. A Supreme Court Bench, headed by Justice Arun Mishra, sent a stern message to those involved in the Amrapali housing projects. The builder Anil Sharma, who was allegedly in league with politicians and officers of the Noida Authority, swindled more than Rs 8,000 crore of homebuyers’ hard-earned money. This crime was perpetrated under the noses of those who were supposed to protect the interest of the people. The problem with our governance system is such that it gleefully ignores the sufferings of the people at the hands of criminals and the corrupt. The Supreme Court has been relentlessly trying to restore faith in the rule of law among the 40,000 hapless homebuyers while the executive with all its power has failed miserably on all counts. The court had appointed a receiver for the case, tied up funds from banks and asked the National Building Corporation to complete the projects. The promoters of Amrapali are cooling their heels in jail for the last six months and their properties are under auction.
The vital question is why does the executive fail in its duty and why does the judiciary have to step in? The answer lies in the lopsided democracy we follow, wherein only vote-fetching and Government formation are a priority of our political masters and public interest takes a back seat. Because of this the remits of the judiciary are being redefined. The judiciary, however, also needs to reinvent itself on certain issues concerning quick delivery of affordable justice so that it does not fall into the same rut like the executive.
(The writer is a retired civil servant)
It is sad that the fourth estate, which ought to be a thriving institution in its own right — showing a mirror to society and advocating rights and issues that politics ignores — now needs regulation or correction by other institutions. Weaponised as a tool of governance and propaganda for long, it took the Supreme Court to stop it from destroying the social fabric instead of mending it. The top court restrained a channel from telecasting a controversial programme that sought to “expose” a “conspiracy and jihad to infiltrate Muslims” into the Indian civil services. The court was right to see through the agenda to vilify a certain community on the pretext of an investigation and perpetuate a narrative suited to the political climate of the day. It had to halt broadcast that would have aggravated an already prejudiced sentiment in the country and, as it said, challenged the constitutionally mandated plurality of India. But then how many broadcasts will it stop given the partisan nature of the hundreds of news channels in India today, some of them owned and funded by political parties themselves? How will it manage the whataboutery and a slew of counter-petitions of why a certain programme doesn’t deserve to be aired while others do? What is divisive and what is not? The court also deliberated on national debates on television channels, which the bench felt required regulation. To bolster its argument, it cited parallel investigations being carried out in criminal investigations, quite clearly implying how motivated interests were manufacturing a national mindset that would go by a heave of emotion rather than facts. Given these observations, the court would then have to become a media watchdog, too, stretching its resources no end. As it is, the Government, a day after the verdict on the channel perceived as friendly to it, filed an affidavit in the Supreme Court, arguing that if the latter desired to undertake the exercise to regulate the media, then it should first do so for digital media, and not electronic media, because social platforms have a faster and wider reach. That is indeed another problem, as given their dependence on open traffic, digital platforms have often been the purveyors of hate speeches and campaigns that have fuelled unrest on the ground. There are more than 50 documented cases of mob violence triggered by misinformation spread over social media in India over the last two years. Many platforms, including Facebook and YouTube, have only to upload an uncensored clip that swiftly becomes credible headlines when picked up by TV media. Facebook and Twitter are too big and have become influencers in their own right, embedding themselves in policies of the regime that is crucial to their business plans in respective countries. Facebook, with over 2.3 billion monthly users across its family of networks, has become too much of a behemoth to be democratic. But its subsidiary messaging board, WhatsApp, is by far the most popular of the platforms. With India accounting for 400 million of its global base of 1.5 billion users, it ends up being the focus of discussions on the spread of misinformation. It has become as much an information propagator as it has a disseminator.
The court mentioned setting up a committee of five citizens who can come up with standards for electronic media but what about existing frameworks, which are toothless at the moment? There is no statutory regulatory mechanism but self-regulatory bodies like the News Broadcasters’ Association (NBA), Broadcast Editors’ Association and News Broadcasters’ Federation have failed to rise to the occasion and ensure a modicum of professionalism. Besides, this multiplicity of authorities generates its own politics and lobbies. The NBA does take up broadcast complaints seriously and has a code of ethics but because it is in the nature of just guidelines and not mandatory, there is no bold, punitive action. Usually, errants are let off with an apology or a minor rap on the knuckles. Besides, members of the NBA are from channels themselves and their hands are somewhat tied up by the prevalent business model of journalism, the kind that links coverage and pitches to revenue and funding. Till we have a singular code that’s trustworthy, neutral or effective or till we have a legally empowered regulatory body, there will always be conflict of interest. Of course, the best regulation would be if broadcast media stuck to sensible rather than sensational journalism. Our Constitution has guaranteed the right to freedom but it implies we follow our duties, too. In a democracy, the media is as much accountable to citizens as are other institutions. It cannot be a self-serving clique but has to call out its own and self-cleanse in the interest of holding up its institutional integrity. Or it could content itself with scripting doggerel.
An open court hearing of cases is one of the fundamentals on which the edifice of our judiciary stands
The Centre announced a countrywide lockdown on March 24 in view of the COVID-19 pandemic. Courts were also forced to suspend their work and then they gradually moved towards the video-conferencing mode to hear urgent matters. As the lockdown ended on May 31, the Bar Council of India requested the Supreme Court (SC) to start open court hearings from June 1 but the seven-judge committee of the apex court declined the request. An open court hearing of the cases is one of the fundamentals on which the edifice of our judiciary stands. The apex court in the case of Naresh Shridhar Mirajkar Vs. State of Maharashtra 1966 held as thus: “It is well settled that in general all cases brought before the courts, whether civil, criminal or others, must be heard in open court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. A trial held subject to public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial tribunals, courts must generally hear causes in open and must permit the public admission to the courtroom.”
Recently in the Swapnil Tripathi Vs. Supreme Court of India 2018 case, Justice DY Chandrachud expressed similar views. On the same theme, Justice Brandeis of the American Supreme Court had famously remarked that “Sunlight is the best disinfectant.” Thus, open court hearings are the very essence of the judicial process and their importance cannot be overemphasised. At present, just about everything in India is “unlocked” and all the private enterprises as well as Government departments are open and working. On July 22, the Supreme Court Bar Association wrote a letter to the Chief Justice of India requesting to resume open court hearings in a phased and regulated manner but the seven-judge committee of the apex court again did not accept the request.
It will be relevant to mention here that pendency of cases before the Indian courts is enormous, although it is not the courts which are entirely responsible for it. There are about 3.5 crore cases pending throughout India. Out of this, there are about 44 lakh suits pending before 25 High Courts (HCs). The restricted hearing of cases through video-conferencing will not do any good in this situation. Due to non-resumption of regular court hearings, even lawyers throughout the country are struggling with their livelihoods.
Recently, in a different matter, a three-judge Bench of the SC in the case of S Kasi Vs. State, affirmed that an accused has to be granted bail if the police is unable to file a chargesheet within the prescribed period. According to Section 167(2) of the Code of Criminal Procedure (CrPC), the investigating officer has to file the chargesheet before the court within 90 days in case the offence is punishable with death or an imprisonment for a term of not less than 10 years and within 60 days in other offences, failing which, the accused has a right to get bail. The accused, S Kasi, applied for bail as the police failed to file a chargesheet in his case within the prescribed time. However, the Madras HC did not accept the bail application mainly on the reasoning that due to the outbreak of the COVID-19 pandemic, the SC has extended the limitation in all the proceedings vide its order dated March 23. The HC was of the view that the limitation for filing a chargesheet by the police also stood extended by virtue of that order. It appears that the HC passed the order taking into consideration the onerous duties which the police force has had to discharge as frontline Corona warriors. Nevertheless, on an appeal filed by the accused, the SC granted him bail by setting aside the order of the HC.
Throughout the country, the police force is performing the duties of frontline Corona warriors. This is in addition to their normal policing duties. Given the nature of their duties, thousands of policemen got infected and hundreds of them succumbed to the pandemic in the line of duty and the count is only rising on a daily basis. The police are grappling with the situation posed by the pandemic like any other institution. However, the SC did not deem it fit to allow any concession to the Investigation Officer from the compliance of provisions of Section 167(2) of the CrPC even in these extraordinary times. Undoubtedly the apex court passed the judgment with a view to protect the personal liberty of the accused. In the overall analysis, if the views of the SC in the S Kasi case are juxtaposed with the decision of the seven-judge committee, which has decided not to resume regular open court hearings, then one cannot help but notice the marked difference in the approach of the SC. It seems that the apex court has not applied the same yardstick to itself which it applied to the other State agencies during these times.
(The writer is a practising advocate in Punjab and Haryana High Court)
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.