📰 Congress, six other parties move to impeach CJI Misra
Motion submitted to Vice-President cites five cases of ‘misbehaviour’
•The Congress, supported by six other Opposition parties in the Rajya Sabha, on Friday took the unprecedented step of moving an impeachment motion against Chief Justice of India (CJI) Dipak Misra on grounds of ‘misbehaviour’ and levelled five charges against him.
•It is the first time a sitting Chief Justice will face an impeachment notice in India’s constitutional history.
71 signatures
•Leader of the Opposition in the Rajya Sabha Ghulam Nabi Azad, accompanied by a few colleagues, submitted the petition with 71 signatures to Rajya Sabha Chairman M. Venkaiah Naidu. Mr Azad, however, mentioned that seven of the signatories had retired as Rajya Sabha members.
•Former Prime Minister Manmohan Singh and former Finance Minister P. Chidambaram did not sign the petition. The Congress, however, denied any rift in the party and claimed the move had Dr Singh’s “concurrence.”
•The notice comes a day after the Supreme Court rejected a clutch of petitions seeking a probe into the circumstances surrounding the death of judge B.H. Loya, who was hearing the Sohrabuddin Sheikh encounter case in which BJP president Amit Shah was an accused. The court held that Loya had died of “natural causes”.
•The Congress, however, insisted that the move was not linked to the verdict in the Loya case.
📰 Impeachment move doesn’t fetter CJI, say experts
R.M. Lodha and K.G. Balakrishnan call for a review of the process to remove judges, seek serious deliberation on introducing alternative steps
•Former Chief Justices of India and eminent jurists said on Friday that there was no need for Chief Justice of India Dipak Misra to withdraw from work merely because a group of Opposition MPs had submitted a notice for his impeachment to the Rajya Sabha Chairman.
•Both the Constitution and the Judges (Inquiry) Act of 1968 are silent on whether a judge facing impeachment motion should recuse from judicial and administrative work till he is cleared of the charges against him. This is the first time that a Chief Justice of India is facing an impeachment motion.
•Former Chief Justice of India K.G. Balakrishnan, who described Chief Justice Misra as a “naturally capable” judge, said the CJI remained unaffected by the impeachment move of the Opposition parties.
•“Neither the law nor propriety requires the CJI to withdraw from work. Until the Rajya Sabha Chairman makes up his mind to admit the motion and refer it to an Inquiry Committee under the 1968 Act, things will be as usual for the CJI,” N.R. Madhava Menon, eminent legal academician and founder-director of National Judicial Academy, Bhopal, said.
•Former Solicitor-General of India Mohan Parasaran said, “Just because a motion is moved, why should he [CJI Misra] actually cease to do his work. Otherwise, tomorrow any 50 MPs can sign an impeachment motion and hold the judiciary to ransom.”
•Former Chief Justice of India R.M. Lodha said it was the CJI’s call whether or not to withdraw from work voluntarily.
‘Tough call’
•“One thing is sure, it will be difficult for the CJI to discharge his duties as expected of a CJI while the impeachment notice is hanging over his head. It will be very stressful. It will be a tough call exercising his authority,” Justice Lodha said.
•Former Attorney-General Mukul Rohatgi called the impeachment notice a “cheap tactic” to intimidate Chief Justice Misra and denigrate the institution.
Review of decision
•The jurists are, however, divided on whether a decision by the Rajya Sabha Chairman to refuse the impeachment motion would be judicially reviewable.
•Justice Lodha said the decision of the Chairman was open to judicial scrutiny. He said impeachment was a “legislative process where a decision thereon is amenable to judicial scrutiny”, and added that the Chairman’s decision was not protected by parliamentary privilege.
•Mr. Parasaran differed, saying the Chairman’s decision to refuse or admit the motion would be hit by parliamentary privilege.
•Justice Balakrishnan also dismissed any fears of the Rajya Sabha Chairman “sitting on” the impeachment motion, waiting till Chief Justice Misra retires on October 2 this year and the motion becoming infructuous.
•“He [Chairman] is a constitutional authority. This motion is made by over 60 MPs. The Chairman cannot refuse the motion on flimsy grounds. He cannot delay and let uncertainty continue. He has to decide within a reasonable time,” the former CJI said.
•Justices Lodha and Balakrishnan, however, agreed that impeachment as a process to remove judges required a re-look. “For 60 years, it has not worked wherever it was needed. It requires serious deliberation on what alternative measures can be employed to bring an end to the matter,” Justice Lodha said.
📰 Cabinet to discuss death penalty for rape of minors
Final decision on Ordinance to be taken at meeting today
•Following a nationwide uproar over the rape of two minors in Kathua and Unnao, the Union Cabinet could, in its meeting on Saturday, take a decision on bringing an Ordinance to award death penalty to those convicted of sexually assaulting a child.
•Law Ministry sources say that they have approved a proposal received from the Ministry of Women and Child Development (MoWCD) to amend the Protection of Children from Sexual Offences (POCSO) Act, 2012, and a final decision on whether to bring it in the form of an Ordinance will be taken at the Cabinet meeting.
Draft Cabinet note
•Last week, WCD Minister Maneka Gandhi had said that her Ministry will amend the POSCO Act to ensure death penalty for sexual assaults on children up to 12 years. Subsequently, a draft Cabinet note was prepared and sent to the Law Ministry.
•According to a senior Ministry official, the draft Cabinet note proposes an amendment to Section 6 of the POCSO Act, which lays down a punishment of 10 years to life imprisonment for aggravated penetrative sexual assault against children.
•On Friday, the Centre also informed the Supreme Court that it is actively considering amending the penal law to introduce death penalty to those convicted of sexually abusing children up to 12 years of age.
📰 Checks against atrocities
The task of balancing penal law enforcement and civil liberties is best left to Parliament
•The Supreme Court, in its recent judgment in Subhash Kashinath Mahajan v. State of Maharashtra , has stirred up a debate which is bound to impact the law and policy on the prohibition of the practice of untouchability and prevention of atrocities against Scheduled Castes (SCs) and Scheduled Tribes (STs) in India.
What data show
•The empirical question of whether the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is really being misused by the filing of false cases (which is the basis for the judgment) needs to be addressed by looking at the available data.
•While it is true, as contended before the court, that National Crime Records Bureau (NCRB) data show that 5,347 false cases involving SCs and 912 false cases involving STs were registered in 2016, it should be noted that these constituted only 9% and 10%, respectively, of the total number of cases that were to be investigated by the police in that year. This would suggest that only about one out of 10 cases filed is false.
•The question that arises is whether the imposition of severe restrictions, on registration and arrest, for all cases under the Act is justified. The other facts sought to be canvassed before the court appear to be more anecdotal than based on concrete statistical data. Thus, there appears to be little evidence that the Act is being rampantly misused. On the contrary, there is plenty of evidence to support the view that the SCs/STs are victims of rising crime each year. NCRB data show that in the past 10 years, crimes against SCs have risen by 51% (27,070 cases in 2006 and 40,801 crimes in 2016 were reported). Against STs it was by 13% (5,791 in 2006 and 6,568 cases in 2016 were reported). Studies by the National Law School of India University and Action Aid India have shown that religious, social and other disabilities involving the practice of untouchability continue to be widespread in India. Thus, there is much empirical evidence to support the stand that the Act needs to be strengthened — not weakened.
Inadequate enforcement
•Legislation on untouchability and atrocities against SCs/STs arguably constitutes a radical departure from the usual approach of the criminal justice system. Unlike other offences, untouchability is an offence under the Constitution — Article 17 prescribes that ‘the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law’. Along with Articles 14, 21 and the rest of them, Article 17 is thus exalted to the position of a fundamental right However, despite the laws, it is generally accepted that Article 17 has not succeeded in achieving its mandate largely due to inadequate enforcement, in turn leading to low conviction rates and a huge pendency of cases.
•Consequently, the legislative trend has been to progressively make the penal law tougher. In 2016, several amendments were introduced to strengthen the 1989 Act such as: including more acts as atrocities; increasing the quantum of punishment for the offences defined as atrocities; imposing an enhanced duty on public servants such as police officers who are required to enforce the Act; constituting special and exclusive courts to try offences under the Act; introducing time limits for investigation and trial; providing enhanced state machinery for arrest, investigation and trial; using presumptions to make convictions easier; and detailed regulation of the rights of victims and witnesses under the Act.
•A study of the enactments under the umbrella of Article 17 would leave little doubt that, as noted by the apex court in various cases, offences under the untouchability and atrocities law constitute a separate and special class of offences. Further, they signal a drastic departure from the normal approach to criminal justice. A study of the constitutional and legislative history relating to SCs/STs would reveal a unique jurisprudence that has evolved on the subject, which mandates a radically different and stronger approach to be adopted by the criminal justice system. In this context, the recent decision by the Supreme Court might be seen to run counter to the legislative trend of making the untouchability and atrocities laws harsher and tougher rather than softer.
•The court’s judgment is noteworthy for reminding us that the untouchability and atrocities laws, in its zeal to make the penal law stricter and more effective in the prosecution of offenders, cannot violate basic civil liberties as enshrined in Articles 21 and 22 (liberties articulated by a number of judges in Maneka Gandhi v. Union of India ).
Possible solutions
•Even if the ruling on anticipatory bail is to be welcomed as protecting the accused from needless arrest and humiliation on the one hand and as a victory for human rights on the other, whether ordinary police powers of registering a first information report and making arrests in cognisable cases should be whittled down to this extent in atrocity cases is a matter of deliberation. False and frivolous complaints filed under untouchability legislation could also have been dealt with by other means which include directions for prompt investigation and prosecution of such offences by the police and others under the Indian Penal Code, 1860. It might have been more appropriate to have left the delicate balancing act between the enforcement of penal laws and the protection of civil liberties to Parliament, the body entrusted with the task of making our laws.
📰 Mission impossible
The proposal for simultaneous elections involves too many practical difficulties
•The idea of holding simultaneous elections to the Lok Sabha and the State Assemblies appears to have caught the imagination of the Bharatiya Janata Party-led government at the Centre. Prime Minister Narendra Modi has been talking about this for some time now. It is not too much of a leap to surmise that he believes that voters are likely to back the same party in both elections, and that in the absence of a national alternative to his candidature at the Centre, such a voting pattern may help the BJP across States too. The Law Commission’s move to seek the opinion of the public, political parties, academicians and other stakeholders, on the proposal appears to be aimed at giving concrete shape to this political viewpoint. The Commission has released a three-page summary of its draft working paper, setting out the amendments that may be required in the Constitution and electoral laws. It proposes to put together a report to forward to the Centre after getting the views of the public. Among its “possible recommendations” is a “constructive vote of no-confidence”: while expressing lack of confidence in one government, members of the legislature will have to repose trust in an alternative. It also suggests that premature dissolution of the House could be avoided if all members sit together and elect a leader. This would entail a temporary waiver of the anti-defection law so that members could help form a stable government without the fear of disqualification. However, these are reforms that can be adopted even if simultaneous elections are not held.
•In principle, simultaneous elections to the Lok Sabha and State Assemblies have the benefits of saving poll expenditure and helping ruling parties focus on governance instead of being constantly in election mode. The flip side is that it is nearly impossible to implement, as it would mean arbitrarily curtailing or extending the term of existing legislatures to bring their election dates in line with the due date for the rest of the country. This would be the most difficult change to execute, as such a measure would undermine federalism as well as representative democracy. The Commission has suggested an alternative: categorise States based on proximity to the next general election, and have one round of State Assembly polls with the next Lok Sabha election, and another round for the remaining States 30 months later. This would mean that India would have a set of elections every two and a half years. But governments have been brought down or have collapsed on their own, leading to mid-term polls in different States and even at the Centre in different years. Given the difficulties involved in shifting to simultaneous elections, we may have to live with the reality that some part of the country will go to polls every few months.
📰 Prosperity in the 21st century
Economic reforms without a robust agricultural growth may not have reduced urban poverty
•A case for bringing the issue of poverty to the centre stage of public policy has recently been made by two of India’s prominent economists. In their article, “How the data sets stack up” ( The Hindu , Editorial page, April 4), C. Rangarajan and S. Mahendra Dev suggest that since the publication of Thomas Piketty’sCapital in the Twenty-First Century global attention may have got somewhat disproportionately focussed on the issue of inequality, crowding out attention to poverty. They argue that poverty is an important indicator of a country’s development on its own.
Levelling up
•This is an important intervention to have made, for we can see from the histories of different parts of the world that the relationship between the movements in poverty and inequality is not unique. In particular, we find from the Indian experience that there are instances in which a public policy focussed on the reduction of inequality may not result in the elimination of poverty. Essentially, inequality can be reduced by taxing the rich, a form of ‘levelling down’, but poverty can be permanently eliminated only by raising the incomes of the poor, a form of ‘levelling up’.
•Not only has public policy in India paid far too little attention to the latter but also some of the measures adopted to tackle inequality may have exacerbated poverty here. The long-term strategy should be to tackle these two jointly through the equalisation of capabilities. However, in the short-term, public policy must address livelihood opportunities for the poor, the exact implication of which for inequality is not always obvious. The experience of poverty for an individual is not necessarily the same as that of inequality, and poverty reduction often requires particular attention. The article by Professors Rangarajan and Dev serves to remind us of this. The scale of poverty in India remains massive. The Planning Commission had estimated it at 363 million in 2011-12 ( Report of the Expert Group to Review the Methodology for Measurement of Poverty , Chair: C. Rangarajan; henceforth ‘Planning Commission, 2014’). This is larger than the combined populations of Germany, France, the U.K., Spain and Italy, and amounted to about a third of the population of India in that year.
•To understand the drivers of poverty it is necessary to take a longer view, avoiding exclusive focus on poverty trends after 1991 as this could lead to misleading inference. For instance, Professors Rangarajan and Dev point to an accelerated reduction in poverty in India since 1991, and by implication the role of the reforms in this process. The fact of an acceleration is incontestable but the role in this development of the reforms as we understand them, as opposed to other public policy interventions, needs clarification. To get there we need first to acknowledge that poverty measured by the number of poor begins to decline in the 1980s itself. Official poverty estimates exist for two time points in the 1980s, 1983 and 1987-88. Poverty declined in both these years, 1983 being the first time ever that a decline in the number of poor was registered. The rate of decline in poverty accelerated between 1983 and 1988. But this was not to last, and the next estimate, for the year 1993-94, actually showed a mild increase. (The foregoing analysis is based on poverty estimates using the ‘Lakdawala Method’. The analysis that follows is based on poverty estimates using the ‘Tendulkar method’. Data in both cases is from ‘Planning Commission, 2014’).
Factoring in fluctuations
•It is important though to see the recorded fluctuations in poverty in perspective. Poverty estimates appear at intervals that are not always uniform, and are influenced by the prevailing prices as consumption expenditure is adjusted for price movements. Despite this we have reason to believe that the recorded rise in poverty in 1993-94 need not be an artefact for the estimated number of poor rises further, though marginally, in 2004-05. It is only the estimate for 2009-10 that shows a decline in the number of poor in India once again. This is followed by a quite spectacular decline over the next two years. To get an idea of the magnitude of the decline, the numbers for 2004-05, 2009-10 and 2011-12 are 407 million, 355 million and 270 million, respectively. So while it is correct say that poverty had declined rapidly since the reforms, it actually declines only after about one and a half decades from 1991.
•Though the extent of poverty reduction over the period 2009-10 to 2011-12 is very high by historical standards, it is not altogether implausible. When we understand this, we are also able to see the potential of the reforms as understood for poverty reduction. The plausibility of the recorded decline in poverty is based on the fact that it comes soon after a period when growth itself in India was fastest ever, the five-year period from 2003-04 onwards. In three of these years growth came close to breaching the double-digit barrier. More crucially, however, the reduction took place when agricultural growth was at its fastest ever. Bipin Deokar and S.L. Shetty have estimated average annual agricultural growth at 4% during 2005-06 to 2013-14 compared to 2.5% for the decade prior to this. A 60% increase in the rate of growth of agriculture sustained for a reasonably long stretch is likely to have impacted poverty significantly. Similarly, the 1980s, when poverty reduction first accelerated, had also been a period of accelerated agricultural growth.
•The relative roles of the reforms and agricultural growth in driving poverty-reduction after 1991 are clear from the differential trends of rural and urban poverty. It is only after 2004-05 that we see for the first time ever a reduction in the number of the urban poor. Till that date this figure has steadily risen while rural poverty had resumed its downward trend after 1993-94 itself. This places the role of the reforms in perspective. The economic reforms had mainly focussed on trade, industry and financial sector reforms. Activity in these sectors is mostly based in urban areas. For well over a decade after 1991 it had not succeeded in reducing the number of urban poor. It is only after the agricultural sector began to grow faster from around the middle of the next one that the number of urban poor begins to decline.
Question of reforms
•Two processes are likely to have been at play in this. Rural prosperity could have fuelled demand for urban products and, following the significant decline in rural poverty, migration from the villages, swelling the numbers of the urban poor, may have slowed. The role of agricultural growth in reducing poverty is apparent in the fact that between 2004-05 and 2009-10 the number of rural poor declined by 15% while the number of urban poor declined only by 5%. This points to the possibility that economic reforms without a robust agricultural growth may not have made much of a difference to urban poverty. The faster growth of agriculture itself came due to sector-specific public policy that was not a subset of what has come to be understood as reforms, defined by liberalisation of the policy regime. The relevant policies have been identified as increased public investment, faster rate of growth of credit for private investment and the launching of the National Horticulture Mission. Strategies for the elimination of poverty are advisedly based on the historical record rather than the promise of “more reforms”.
