📰 Supreme Court opens CJI office to RTI
"Transparency and accountability should go hand in hand," the main judgment authored by Justice Sanjeev Khanna and supported by Chief Justice Gogoi and Justice Deepak Gupta said.
•The Office of the Chief Justice of India (CJI) is a ‘public authority’ under the Right to Information (RTI) Act, a five-judge Constitution Bench led by Chief Justice of India Ranjan Gogoi declared on Wednesday.
•The main judgment of the Constitution Bench authored by Justice Sanjiv Khanna said the Supreme Court is a ‘public authority’ and the office of the CJI is part and parcel of the institution. Hence, if the Supreme Court is a public authority, so is the office of the CJI.
•Justice Khanna, who shared his judgment with Chief Justice Gogoi and Justice Deepak Gupta, observed that “transparency and accountability should go hand-in-hand”. Increased transparency under RTI was no threat to judicial independence, he held.
•Justice D.Y. Chandrachud, in his separate and concurring opinion, eloquently observed that “judicial independence is not secured by the secrecy of cloistered halls”.
•Justice N.V. Ramana, in his opinion, struck a more cautionary note, saying judicial independence was the basis of the trust public reposes in the judiciary. Only the right dose of transparency should be calibrated with judicial independence.
‘Not absolute right’
•The Bench, however, agreed, in one voice, that the right to know under RTI was not absolute. The right to know of a citizen ought to be balanced with the right to privacy of individual judges.
•“Right to information should not be allowed to be used as a tool of surveillance,” Justice Ramana wrote.
•Hence, on this aspect, Justice Khanna held that personal information of judges should only be divulged under RTI if such disclosure served the larger public interest.
•The disclosure of personal information was discretionary under Section 8(1)(j) of the RTI Act. The statute has given the discretion to the Public Information Officer (PIO).
•Justice Chandrachud said the information about assets of judges and official communication during the process of elevation of judges to the Supreme Court are treated as confidential third-party information. In such cases, the PIO should follow the procedure mandated in Section 11 of the RTI Act. That is, a notice should be first issued to the third party — the judge concerned — about the RTI request for information. The view of the third party should be considered before the PIO takes a call.
•“Personal information, which if disclosed, could lead to an unwarranted invasion of privacy right… what should be disclosed would depend on authentic enquiry relating to the public interest,” the Supreme Court observed.
•Justice Ramana even listed certain “non-exhaustive factors” for the PIO to consider while deciding whether the information sought was private. These factors include various criteria from the nature of the information sought to its impact on the private life of the judge.
•The Bench upheld the Delhi High Court judgment of 2010 that the CJI does not hold information on the personal assets of fellow judges in a fiduciary capacity. Information held by a person in a fiduciary capacity is exempt from disclosure under RTI.
•Justice Chandrachud observed that the judges of the Supreme Court are constitutional offices and not a hierarchy.
•“The judges who disclose their assets cannot be said to be vulnerable to and dependent on the Chief Justice of India,” Justice Chandrachud observed.
Centre’s ‘control’ of functioning of tribunals would affect judicial independence, it says
•A Constitution Bench of the Supreme Court on Wednesday struck down in entirety Rules framed by the government under the Finance Act of 2017 to alter the appointments to 19 key judicial tribunals, including the Central Administrative Tribunal.
•The Bench led by Chief Justice Ranjan Gogoi held that the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 suffered from “various infirmities”.
•“These Rules formulated by the Central Government under Section 184 of the Finance Act, 2017 being contrary to the parent enactment and the principles envisaged in the Constitution as interpreted by this Court, are hereby struck down in entirety,” the Bench declared.
•In his majority opinion, Chief Justice Gogoi referred to a larger Bench the issue and question whether the 2017 Act could have been passed as a money bill.
•The court said a seven-judge Bench should also decide the question whether the Lok Sabha Speaker acted in the right by certifying it as money bill, thus allowing it to circumvent Rajya Sabha.
•One of the petitioners in the case and Rajya Sabha MP, Jairam Ramesh, said the passing of the Finance Act 2017 as a money bill was deliberately done to “extend executive control over these institutions (tribunals) by altering the composition of the selection committees and vastly downgrading the qualifications and experience required to staff these bodies”.
•Another reason for referring the ‘money bill’ question to a seven-judge Bench was the court’s dissatisfaction with the way the Aadhaar judgment in the K. Puttuswamy case had dealt with the issue of what could be certified as a money bill. The Constitution Bench said the Puttuswamy verdict in the Aadhaar case was not comprehensive enough to be set as a precedent on the issue of money bills.
•However, in his minority opinion on the Bench, Justice D.Y. Chandrachud held that the 2017 Act could not have been enacted as a money bill and that Part XIV of the Act amounted to a “substantive irregularity”.
•The court nevertheless did not agree with the petitioners that Section 184 of the Finance Act, 2017 suffered from excessive delegation of legislative functions. It was under Section 184 that the 2017 Rules regarding appointment of tribunals were framed.
•The court ordered the Centre to re-formulate the Rules within six months strictly in conformity with the principles delineated by the Supreme Court. “The new set of Rules to be formulated by the Central Government shall ensure non-discriminatory and uniform conditions of service, including assured tenure, keeping in mind the fact that the Chairperson and Members appointed after retirement and those who are appointed from the Bar or from other specialised professions/services, constitute two separate and distinct homogeneous classes,” the Supreme Court directed.
•The court further ordered the Union Ministry of Law and Justice to conduct a ‘Judicial Impact Assessment’ of tribunals to analyse the ramifications of the changes caused by the Finance Act, 2017.
•The court also directed the Centre to “carry out an appropriate exercise for amalgamation of existing tribunals adopting the test of homogeneity of the subject matters to be dealt with and thereafter constitute adequate number of Benches commensurate with the existing and anticipated volume of work”.
•For now, as an interim measure, the Bench directed that the terms and conditions of appointment to the tribunals would be in accordance with the respective statutes which were in place before the enactment of the Finance Bill, 2017.
📰 Narrowing options in Jammu and Kashmir
India needs to win the battle of minds within the country before trying to justify itself in the eyes of the world
•It is a little over 100 days since Parliament, on August 5, approved the dilution of Article 370 of the Constitution, and decided to carve out of Jammu and Kashmir (J&K), the Union Territories of J&K and Ladakh. J&K, however, still remains an enigma for Delhi. The continuing clampdown in most parts of Kashmir, and the absence of any worthwhile interaction between Kashmir and the outside world has prevented any realistic assessment of the situation.
A metric of reality
•Speculation is rife that the current ominous silence masks deep-seated anxieties as also anger at the turn of events that is reflected at times in sporadic instances of violence. This was amply evident during the brief visit of Members of the European Parliament (MEPs) to Srinagar last month when the city shut down and a couple of incidents also took place. It is possible for the authorities to claim that instances of violence are currently fewer than prior to August 5, but it is a moot point whether this is any index of the true situation that exists in Kashmir today.
•Irrespective of claims and counterclaims, the reality is that India’s proud heritage of being one of the leading democracies in the world has taken a beating. This is bound to continue as long as the clampdown in Kashmir, together with the continuing incarceration of Kashmiri leaders including the three former Chief Ministers viz., Farooq Abdullah, Mehbooba Mufti and Omar Abdullah, continues. Hence, it may be time for Delhi to bite the bullet now rather than later and face the consequences of the step it has taken. Further procrastination would make it more difficult to pull back from an abyss of their own making, however laudable the objective might have seemed in the first instance.
Some highs, many lows
•Notwithstanding a massive public relations exercise, it is obvious by now that the results have not been what the Prime Minister and the Indian government would have hoped for. There were, no doubt, some ‘highs’ such as voiding of direct criticism of India’s action in Kashmir by a majority of democratic governments in the West, and by quite a few other allies, including some possessing doubtful human rights antecedents such as Saudi Arabia. There were equally many ‘lows’, with prominent leaders such as German Chancellor Angela Merkel expressing their concern that “the situation for the people in Kashmir is not good and not sustainable”, and the UN Human Rights Commission affirming that it is “extremely concerned” that people in J&K continued to be “deprived of a wide range of human rights” and urging the Indian government to “unlock the situation and fully restore the rights that are currently being denied”.
•It is not, however, so much international opinion that should worry Delhi, even though for the first time after 1994, Kashmir has once again come on the global radar. Rather, it is India’s record and image as a democracy that is currently on trial, as much within the country as in the court of world opinion.
•India needs to win the battle of minds within the country before trying to justify itself in the eyes of the world. Unfortunately, this aspect is not being addressed adequately and suitably, and the government appears mired in confusion as to what should, or should not, be done to ensure greater verisimilitude for the steps that it has taken. Unfortunately, as in quite a few other instances as well, the government’s efforts only seem to confound rather than provide suitable answers. How else can one possibly describe the undoubtedly stage-managed visit of 20-odd handpicked MEPs, purportedly sponsored by a Delhi-based think tank with suspected links to intelligence agencies, and with an unknown Brussels-based U.K. citizen of Indian descent fronting for the team (something that seems right out of a John le Carré novel).
Information flow and identity
•Also mystifying to all those seeking plausible answers to the Kashmir imbroglio is why instead of indulging in such needless shenanigans of less than doubtful value, the government did not come out with a straightforward explanation of what it had sought and achieved by its actions. The deed, viz., dilution of Article 370 and reducing the status of J&K into two Union Territories is a ‘fait accompli’. What the government should do is to put out for the information of the people of J&K and India, as also the world at large, what plans it has for this troubled region in the period ahead. Together with affirmations of adherence to democratic protocol, this would meet with far greater resonance from the people than devious steps and ‘tactics of the MEP variety’.
•The authorities will need to prepare for some degree of violence once the measures put in place are relaxed. This situation would be far better, however, than to be accused of resorting to an authoritarian approach that further prolongation of the curfew and current harsh measures would entail. It is again important to remember that while special measures such as Article 370 and Article 35A can be removed from the statute books, there is another, and bigger, issue at stake — viz. that of ‘Kashmiri identity’ which cannot be erased. The latter would still require careful nurturing. Ignoring this and merely promising a bright economic future for the two Union Territories would make it sound as hollow as the apologies made in the late 1930s to justify Stalinism’s crimes during that period as ‘the necessary price for building a socialist future’.
•This is a time for healing, not for more confrontation. In Kashmir, what is needed today is a reassurance of democratic traditions rather than what cynics would refer to as a ‘bubble’, and a promise of vibrant economic opportunities while they worry about their freedoms. Kashmir is not a piece of software for experimentation. To keep repeating that Article 370 was responsible for all of Kashmir’s ills is likely to have fewer and fewer takers as time elapses. What is needed is to dispel any notion that Delhi is ‘accelerating colonisation’ of everyday life in Kashmir. As a very first step, normalcy needs to be restored by removing most of the impediments that exist at present, with the release of political leaders and as many of their followers as possible.
•Democracy is at an inflection point today, and liberal democratic trends are in retreat in many regions of the globe. The common presumption is that erosion of democracy occurs when there is excessive concentration of powers in a single authority, accompanied by curbs on the media. Kashmir is today perceived as perilously close to this. It is for India’s leaders to confound and confront their opponents by relaxing the measures in place. Today more than ever, India needs to underscore the ‘importance of diversity, the dignity of individuals, and protection of their rights. It should be able to demonstrate necessary flexibility, the ability to deal with paradoxes, and manage seemingly contradictory approaches’. India must also convincingly demonstrate that the proclivity of many states to use violence to achieve the ends of policy is not a part of India’s democratic traditions. Instead, India adheres to a policy of supporting law and seeking reconciliation, ensuring justice.
A note on diplomacy
•In the same context, and given its growing stature in world affairs, India must act with magnanimity and understanding when certain countries react adversely to India’s actions, whether on domestic or international matters. India has a tradition of warm relations with almost all countries, with the exception of Pakistan. It should not now blot this record by acting out of a sense of pique in dealing with certain nations such as Turkey and Malaysia, who have been critical of India’s actions in Kashmir and of implicitly siding with Pakistan. Such actions do not sit well with India’s hoary traditions and civilisational attributes.
📰 Disqualified, yet qualified: On Karnataka rebel MLAs
In Karnataka MLAs’ case, SC clarifies law on interplay between resignation, disqualification
•It is not often that an adverse order brings relief along with it. Even while upholding the Karnataka Speaker’s orders disqualifying 17 defectors this year, the Supreme Court has allowed the former legislators to contest the December 5 by-elections to 15 Assembly seats. The former Janata Dal (S) and Congress MLAs are now free not only to contest the polls, but may reap the benefits of their amoral crossover by getting a ticket from the ruling BJP. Most of them had tried to resign from their respective parties in July, but the move was seen as a transparent ploy to bring down the JD(S)-Congress regime of H.D. Kumaraswamy. The suspicion, not unfounded, was that they would get ministerial positions as soon as BJP leader B.S. Yediyurappa formed a BJP government. The then Speaker, K.R. Ramesh Kumar, kept them at bay for days by refusing to act on their resignations. Ultimately, he disqualified all of them in orders passed on July 25 and 28 and said the disqualification would go on till 2023 — the end of the current Assembly’s term. The Speaker’s stance was quite controversial as it appeared to create a conflict between resignation and disqualification. He now stands partially vindicated as his argument that resignation could not be a ruse to evade an impending disqualification has been accepted. The Speaker was also hoping to keep the defectors out of any alternative regime as members disqualified for defection are barred from becoming ministers until they get re-elected.
•The court’s exposition of the law relating to the interplay between resignation and defection is quite welcome. On the one hand, resignation does not take away the effect of a prior act that amounts to disqualification. On the other, Speakers are not given a free pass to sit on resignation letters indefinitely. Under Article 190(3), a provision under which the Speaker has to ascertain the “voluntary” and “genuine” nature of a resignation before accepting it, the court is clear that it is a limited inquiry, only to see if the letter is authentic and if the intent to quit is based on free will. “Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation,” the court has said. This effectively ends the argument that the Speaker is empowered to consider the motives and circumstances whenever a resignation is submitted. The verdict bemoans the fact that Speakers sometimes tend not to be neutral, and that change of loyalty for the lure of office continues despite the anti-defection law. Identifying its weak aspects and strengthening the law may be the answer.
📰 Gloom deepens: On shrinking industrial output
Shrinking industrial output signals slowdown is some distance from bottoming out
•Yet another set of economic data from the National Statistical Office has reaffirmed both the depth and all-pervasive width of the ongoing economic slowdown. The latest index of industrial production (IIP) estimates from the NSO show that output shrank by 4.3% in September, with all three component sectors in the index — manufacturing, mining and electricity — posting contractions. This was the sharpest contraction in output since at least April 2012, before which the data was referenced to a different base year. Also, five of the six categories on the IIP’s use-based classification of goods registered declines, with only intermediate goods bucking the trend. Disconcertingly, the prolonged slump in the output of capital goods, a proxy for investment activity by businesses, extended into a ninth straight month as production contracted by about 21% for the second month in a row. Consumer durables also posted a fourth straight contraction, with the 9.9% decline appearing in stark contrast to September 2018’s 5.4% growth. Clearly, manufacturers of white goods are struggling to find demand for their wares and the sliding production points to an absence of the traditional festival-eve restocking bump. The second successive shrinkage in infrastructure and construction goods — it shrank 6.4% — reflects the challenges besetting the two eponymous primary sectors. Here, the Centre’s announcement of a funding initiative to help stalled housing projects ought to provide some fillip in the coming months. But a stretched fiscal situation is likely to keep government spending on other big-ticket infrastructure projects muted for the foreseeable future.
•From an industry perspective, 17 of the 23 industry groups that comprise the manufacturing sector contracted. And leading the slump, predictably, was the motor vehicles industry, which posted a 25% contraction. If the wholesale data from the Society of Indian Automobile Manufacturers (SIAM) is any indicator of trends for this industry, there is certainly more pain ahead as overall shipments fell almost 13% from a year earlier in October. Demand for newly introduced utility vehicles was the saving grace, as it propelled a marginal uptick in passenger vehicle deliveries. SIAM’s figures on commercial vehicles, which show a 23% year-on-year decline, particularly underscore the demand vacuum in the rural hinterland and the wariness on the part of fleet operators to invest in new haulage capacity. With manufacturing having a weight of almost 78% in the IIP, the latest report from IHS Markit gives little room for optimism. The survey-based Purchasing Managers’ Index revealed continuing manufacturing sector weakness in October as weakening demand hurt new orders and business sentiment. In fact, business confidence had slipped last month to its lowest level in more than two-and-a-half years, according to the private economic research group. All signs now point to the central bank cutting interest rates again at its next meeting, in order to help spur a revival.
📰 Climate change is already damaging health of children, says Lancet report
‘Few countries are likely to suffer from the health effects of climate change as much as India’
•Climate change is already damaging the health of the world’s children and is set to shape the well-being of an entire generation, unless the world meets the target to limit warming to well below 2˚C, according to a major new report published in The Lancet.
•‘The Lancet Countdown on Health and Climate Change’ is a comprehensive yearly analysis tracking progress across 41 key indicators, demonstrating what action to meet Paris Agreement targets — or business as usual — means for human health.
•The project is a collaboration between 120 experts from 35 institutions, including the World Health Organisation, the World Bank, University College London, and the Tsinghua University in Beijing.
Greatest burden
•The report notes that as temperatures rise, infants will bear the greatest burden of malnutrition and rising food prices — average yield potential of maize and rice has declined almost 2% in India since the 1960s, with malnutrition already responsible for two-thirds of under-5 deaths.
•Also, children will suffer most from the rise in infectious diseases — with climatic suitability for the Vibrio bacteria that cause cholera rising 3% a year in India since the early 1980s, the study warns.
•Co-author Poornima Prabhakaran, Public Health Foundation of India, said: “With its huge population and high rates of healthcare inequality, poverty and malnutrition, few countries are likely to suffer from the health effects of climate change as much as India.”
•She explained that diarrhoeal infections, a major cause of child mortality, will spread into new areas, whilst deadly heatwaves, similar to the one in 2015 that killed thousands of people in India, could soon become the norm.
‘Could be reversed’
•“Over the past two decades, the Government of India has launched many initiatives and programmes to address a variety of diseases and risk factors. But this report shows that the public health gains achieved over the past 50 years could soon be reversed by the changing climate,” she said.
•For the world to meet its UN climate goals and protect the health of the next generation, the energy landscape will have to change drastically, and soon, the report warns.
•Nothing short of a 7.4% year-on-year cut in fossil CO2 emissions from 2019 to 2050 will limit global warming to the more ambitious goal of 1.5°C.
•Putting into focus what it means for children, the report says that if the world follows a business-as-usual pathway, with high carbon emissions and climate change continuing at the current rate, a child born today will face a world on average over 4˚C warmer by their 71st birthday, threatening their health at every stage of their lives.
Particularly vulnerable
•“Children are particularly vulnerable to the health risks of a changing climate. Their bodies and immune systems are still developing, leaving them more susceptible to disease and environmental pollutants,” explained Nick Watts, executive director, ‘The Lancet Countdown’.
•He adds that the damage done in early childhood is persistent and pervasive, with health consequences lasting for a lifetime. “Without immediate action from all countries to cut greenhouse gas emissions, gains in wellbeing and life expectancy will be compromised, and climate change will come to define the health of an entire generation,” he said.
•The report also notes that as temperatures rise, harvests will shrink — threatening food security and driving up food prices. This will hit infants hardest.
•They would also feel deadliest impact of disease outbreaks.
•“Over the past 30 years, the number of climatically suitable days for Vibrio bacteria (that cause much of diarrhoeal disease globally) have doubled,” notes the report.
Renewable energy
•But despite the scale of the challenge, the report offers some reason for cautious optimism, stating that the world is shifting toward using more renewable resources.
•“While India is joining the global shift towards renewable energy, it still overwhelmingly relies on coal for electricity, with an 11% increase in its energy from burning coal in 2016-2018, compared to less than a 1.5% rise in China. To dramatically reduce emissions by 2050, and to meet multiple Sustainable Development Goals, India must transition away from coal and towards renewable energy. It will also need to enhance public transport, increase use of cleaner fuels, and improve waste management and agricultural production practices,” said Dr. Prabhakaran.
