📰 A Governor’s test
Governors should not act at the behestof the party ruling at the Centre
•Rajasthan Governor Kalraj Mishra could have sought a floor test in the State Assembly to ensure that the government of Chief Minister Ashok Gehlot has a majority, as soon as a rebellion in the ruling Congress cast a shadow on it. Far from that, Mr. Mishra now appears to be bending over backwards to delay a trust vote. The Governor has cited six reasons for his procrastination in calling an Assembly session. But the Supreme Court has settled that the Governor has no discretionary powers in summoning a session of the Assembly, and he or she is bound to act according to the aid and advice of the CM and the Council of Ministers. The Governor can require the CM and the Council of Ministers to seek a trust vote if he or she has reasons to believe that they have lost the confidence of the Assembly. Either way, the only appropriate way forward for Mr. Mishra is to convene the session and allow the democratic process to take its course. Now that the State cabinet has reiterated its demand for a session, specifying a date and an agenda as demanded by the Governor, he should not look for more excuses and bring embarrassment to the high office he holds.
•The CM has said the Governor is acting under pressure from the Centre, as he took the battle to the streets. Congress MLAs supporting the CM held a dharna at the Governor’s residence, and a public protest is to be held on Monday. It is instructive to compare Mr. Mishra’s conduct with that of Lalji Tandon, the former Governor of Madhya Pradesh, when similar sabotage brought down the Congress government led by Kamal Nath in March. Mr. Nath had said Congress MLAs were held captive, and the voting could be vitiated, but the Governor declared that the failure to take an immediate floor test would be presumed as a lack of majority. Mr. Mishra wants to ensure that all MLAs are free to move around before a session could take place, though there is no public knowledge of anyone complaining to him being restrained. He requires the government to take into consideration the spread of the novel coronavirus, but in Madhya Pradesh, the reasoning was the opposite — the Governor did not want any delay on account of the pandemic. These arguments of two Governors four months apart in two States certainly appear contradictory, but also partisan in favour of the Bharatiya Janata Party. The BJP’s imprint is unmistakable in the crisis in Rajasthan, its denial apart. The Raj Bhavan should not be a tool of the BJP to dislodge and install governments as and when it wants. Mr. Mishra too has a test to pass, of constitutional morality.
It is regrettable that judges believe that silencing criticism will harbour respect for the judiciary
•These are strange times we are going through right now. The pandemic has brought all activities to a virtual standstill. Even as workplaces and institutions are slowly and tentatively getting back on their feet, the focus is on ensuring that the more important things get done first. Priorities are being identified accordingly. For the Supreme Court of India, identifying priority cases to take up first (in a pandemic-constricted schedule) ought not to be very difficult: there are dozens of constitutional cases that need to be desperately addressed, such as the constitutionality of the Citizenship (Amendment) Act, the electoral bonds matter, or the issue of habeas corpus petitions from Jammu and Kashmir. It is disappointing that instead of taking up matters of absolute urgency in these peculiar times, the Supreme Court chose to take umbrage at two tweets. It said that these tweets “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution... and the office of the Chief Justice of India in particular….” Its response to these two tweets was to initiate suo motu proceedings for criminal contempt against the author of those tweets, the lawyer and social activist, Prashant Bhushan.
•This need to “respect the authority and dignity of the court” has monarchical origins from when the King of England delivered judgments himself. But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy. The U.K. Law Commission in a 2012 report recommending the abolition of the law of contempt said that the law was originally intended to maintain a “blaze of glory” around courts. It said that the purpose of the offence was not “confined to preventing the public from getting the wrong idea about judges... but that where there are shortcomings, it is equally important to prevent the public from getting the right idea”.
A wide field in India
•The objective for contempt is stated to be to safeguard the interests of the public, if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded. But the definition of criminal contempt in India is extremely wide, and can be easily invoked. Suo motu powers of the Court to initiate such proceedings only serve to complicate matters. And truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended. Nevertheless, the Delhi High Court, despite truth and good faith raised as defences, proceeded to sentence the employees of Mid-Day for contempt of court for portraying a retired Chief Justice of India in an unfavourable light.
•It comes as no surprise that Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of public good, may unwittingly trample upon civil liberties. It is for us to determine what is the extent of such trampling we are willing to bear. On the face of it, a law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
•An excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous, for it can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all, regardless of how evidently problematic its actions may be. In this manner, the judiciary could find itself at an uncanny parallel with the executive, in using laws for chilling effect.
•Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated. If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning. It should not be allowed to be used as a means to prevent any and all criticism of an institution.
Obsolete abroad
•Already, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law, designed for use in a bygone era, whose utility and necessity has long vanished. Canada ties its test for contempt to real, substantial and immediate dangers to the administration, whereas American courts also no longer use the law of contempt in response to comments on judges or legal matters.
•In England, too, from where we have inherited the unfortunate legacy of contempt law, the legal position has evolved. After the celebrated Spycatcher judgment was delivered in the late 1980s by the House of Lords, the British tabloid, the Daily Mirror , published an upside-down photograph of the Law Lords with the caption, “You Old Fools”. Refusing to initiate contempt action against the newspaper, one judge on the Bench, Lord Templeton, reportedly said, “I cannot deny that I am Old; It’s the truth. Whether I am a fool or not is a matter of perception of someone else.. There is no need to invoke the powers of contempt.” Even when, in 2016, the Daily Mail ran a photo of the three judges who issued the Brexit ruling with the caption “Enemies of the People”, which many considered excessive, the courts judiciously and sensibly ignored the story, and did not commence contempt proceedings.
•But Indian courts have not been inclined — or at least, not always — to display the same maturity and unruffled spirit as their peers elsewhere. An exception lay in Justice S.P. Bharucha’s response to Arundhati Roy’s criticism of the Supreme Court for vacating the stay for constructing a dam: although holding that Ms. Roy had brought disrepute to the Court, nothing further was done, for “the court’s shoulders [were] broad enough to shrug off [these] comments”. But this magnanimity was sadly undone when contempt proceedings were initiated against the author for leading a demonstration outside the court, and filing an affidavit, where she said “it indicates a disquieting inclination on the part of the Court to silence criticism and silence dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm”. For “scandalising its authority with mala fide intentions”, she was punished for contempt of court, and sentenced to a day’s imprisonment, with fine.
•It is regrettable that judges believe that silencing criticism will harbour respect for the judiciary. On the contrary, surely, any efforts to artificially prevent free speech will only exacerbate the situation further. As was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforced silence would probably engender resentment, suspicion, and contempt for the bench, not the respect it seeks”. Surely, this is not what the Court might desire.
Two observations and a link
•Simultaneous with the Indian Supreme Court’s decision to commence contempt proceedings against Mr. Bhushan, the Pakistan Supreme Court hinted at banning YouTube and other social media platforms, for hosting what it termed ‘objectionable content’ that ‘incited hatred’ for institutions such as the army, the judiciary, the executive, and so on. The eerie similarity between the two sets of observations raises concerns about which direction the Indian Supreme Court sees itself heading. One can only hope that these fears are unwarranted.
📰 A revolution in policy mindset
With the pandemic derailing us, we need big initiatives to achieve sustainable development goals
•As lockdowns ease in countries across Asia and the Pacific in the wake of the COVID-19 pandemic, one thing is clear — a return to business as usual is unimaginable in a region that was already off track to meet the Sustainable Development Goals (SDGs). The virtual High-Level Political Forum on Sustainable Development recently convened governments and stakeholders to focus on the imperative to build back better while keeping an eye on the global goals.
•Asia was the first to be hit by COVID-19 and feel its devastating social and economic impacts. Efforts to respond to the pandemic have revealed how many people in our societies live precariously close to poverty and hunger. Many countries are taking bold actions to minimise the loss of life and economic costs.
•As attention shifts from the immediate health and human effects of the pandemic to addressing its social and economic effects, governments and societies face unprecedented policy, regulatory and fiscal choices. The SDGs — a commitment to eradicate poverty and achieve sustainable development, globally, by 2030 — can serve as a beacon in these turbulent times.
Grounds for optimism
•The pandemic has exposed fragility and systemic gaps in many key systems. However, there are many workable strategies that countries have used to accelerate progress related to development goals and strengthen resilience. Countries have taken steps to extend universal health care systems and strengthen social protection systems, including cash transfer and food distribution systems for vulnerable households. Accurate and regular data have been key to such efforts. Innovating to help the most disadvantaged access financing and small and medium-sized enterprise credits have also been vital. Several countries have taken comprehensive approaches to various forms of discrimination, particularly related to gender and gender-based violence. Partnerships, including with the private sector and financing institutions, have played a critical role in fostering creative solutions. These experiences provide grounds for optimism.
•Responses to the COVID-19 crisis must be centred on the well-being of people, empowering them and advancing equality. Driving change in the people-environment nexus to protect the health of people and natural resources is key to a future that does not repeat the crisis we are in today.
A revolution needed
•We need a revolution in policy mindset and practice. Inclusive and accountable governance systems, adaptive institutions with resilience to future shocks, universal social protection and health insurance, and stronger digital infrastructure are part of the transformations needed.
•Several countries in Asia and the Pacific are developing ambitious new strategies for green recovery and inclusive approaches to development. South Korea recently announced a New Deal based on two central pillars: digitisation and decarbonisation. Many countries in the Pacific are focusing on “blue recovery,” seizing the opportunity to promote more sustainable approaches to fisheries management. India recently announced operating the largest solar power plant in the region. China is creating more jobs in the renewable energy sector than in fossil fuel industries.
•Institutions such as the United Nations and Asian Development Bank have mobilised to support a shared response to the crisis. Now it is vital that we enable countries to secure the support they need to go beyond, to achieve the SDGs.
