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)
If the SC has to intervene every time on mala fide content on channels, it will be flooded with petitions. We need a neutral code
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.
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.
Writer: Pioneer
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 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 offense.”
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)
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