📰 Cooperation Ministry will usurp States’ rights: Oppn.
Parties likely to raise the issue in the monsoon session
•A row is about to erupt between the Treasury and Opposition benches in the monsoon session of Parliament, set to start on July 19, over the formation of the Ministry of Cooperation, which was announced on July 5. The portfolio has been given to Home Minister Amit Shah after last Wednesday’s Cabinet expansion.
•The government said the Ministry “will provide a separate administrative, legal and policy framework for strengthening the cooperative movement in the country” and do much to streamline the processes for “ease of doing business” and enable development of Multi-State Co-operative Banks” (MSCBs). Significantly, the MSCBs have now been solely taken under the Reserve Bank of India for regulatory purposes.
•Opposition leaders, however, said the move was to “hijack the cooperative movement” that currently falls under the State governments.
•Senior Congress leader Ramesh Chennithala, who was the former Leader of the Opposition in Kerala — a State with a strong cooperative movement — told The Hindu that “the move is planned to hijack the cooperative movement”.
•“They [the BJP] want total control of the cooperative movement across the country and that’s why they have made Amit Shah in charge of the Ministry. Cooperatives is a State subject under entry 32 of the State list under the Schedule 7 of the Constitution. How can they create a Ministry without an Act of Parliament?” Mr. Chennithala, a sitting lawmaker from Kerala, said.
•The cooperative model has been a source of political power in States such as Maharashtra, Kerala, Gujarat, parts of Karnataka, Tamil Nadu, Madhya Pradesh and West Bengal. Many of these cash-rich cooperatives are controlled by Opposition parties, such as the Nationalist Congress Party, the CPI(M) and the Congress in some of these States.
•“The government is yet to explain the purpose and objective of this Ministry. And the appointment of Mr. Shah raises several questions as it encroaches on a State’s power. Our party will raise this in Parliament,” CPI general secretary D. Raja said.
•Dhananjay Mahadik, a former member of the Lok Sabha who won on an NCP ticket and currently with the BJP, welcomed the move as an important part in rural development. Mr. Mahadik , who was associated with sugar and milk cooperatives in Maharashtra, said that “whatever development has taken place in rural areas in Maharashtra owes a lot to the rise of cooperatives in the State.”
“Judges must not cross the line of separation of powers”
•The Supreme Court said on Friday that judges should not behave like “emperors” and summon government officials “at the drop of a hat”.
•The Supreme Court said there would be a “reaction” if judges cross the line of separation of powers between the judiciary and the executive to call officers to court “unnecessarily”. The apex court prescribed modesty and humility.
•“A practice has developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure. The line of separation of powers between judiciary and executive is sought to be crossed by summoning the officers and in a way pressurising them to pass an order as per the whims and fancies of the court,” a Bench of Justices S.K. Kaul and Hemant Gupta observed in a judgment pronounced on Friday.
Third limb
•Justice Gupta, who authored the judgment, said officials were also performing their duties as the third limb of governance.
•“The actions or decisions by the officers are not to benefit them, but as a custodian of public funds and in the interest of administration some decisions are bound to be taken. It is always open to the High Court to set aside the decision which does not meet the test of judicial review, but summoning of officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words,” the court observed.
•Judges must know their limits. The dignity and majesty of the court was not enhanced when an officer was called to court. Respect to the court had to be commanded and not demanded and the same was not enhanced by calling public officers, Justice Gupta noted.
•At times, officials had to travel great distances and wait for hours in court. His official work was delayed, creating an extra burden on the officer
“Power of the pen”
•“Summoning of the officer is against the public interest... Courts have the power of the pen which is more effective than the presence of an officer in Court. If any particular issue arises for consideration before the Court, and the advocate representing the State is not able to answer, it is advised to write such doubt in the order and give time to the State or its officers to respond,” Justice Gupta observed in the verdict.
•The observations were part of the judgment in an appeal against an Allahabad High Court decision. The High Court had summoned the Secretary, Medical Health.
📰 In a first, Himalayan yaks to be insured
National Research Centre on Yak in Arunachal Pradesh’s Dirang terms it a landmark development
•The high-altitude yak, feeling the climate change heat across the Himalayan belt, will now be insured.
•The National Research Centre on Yak (NRCY) at Dirang in Arunachal Pradesh’s West Kameng district has tied up with the National Insurance Company Ltd. for insuring their livestock.
•“The countrywide population trend shows that yak population has been decreasing at an alarming rate. Further, climate change and inexplicable changes in the weather pattern have been reported from the yak rearing areas throughout the country,” NRCY director Dr. Mihir Sarkar said.
•The insurance policy will shield the yak owners against the risks posed by weather calamities, diseases, in-transit mishaps, surgical operations and strikes or riots.
•“More than 500 yaks died in a single spell of heavy rainfall in northern Sikkim in 2019, leading to a heavy financial burden on the owners,” Dr. Sarkar said.
•A four-year-old report said the number of yaks across the country declined by almost 24.7% between 2012 and 2019.
Yak population in India
•The total yak population in India is about 58,000. The Union Territories of Ladakh and Jammu and Kashmir have some 26,000, followed by 24,000 in Arunachal Pradesh, 5,000 in Sikkim, 2,000 in Himachal Pradesh and about 1,000 in West Bengal and Uttarakhand.
•Dr. Sarkar termed it “a landmark development in providing financial security to yak rearing communities in Arunachal Pradesh, Sikkim, Ladakh and Himachal Pradesh.”
•According to the policy, the owners would have to get their yaks ear-tagged and provide a proper description in order to get their animals insured.
•For claims, the owner has to submit the completed claim form, death certificate from the veterinary practitioner, the post-mortem report and the ear tag.
•“Also, there has to be a 15-day waiting period to claim the amount, that is, death of an animal due to some disease within 15 days from the commencement of the risk is not payable,” the NRCY said in a statement.
•Scientists at the NRCY, established in 1989 by the Indian Council of Agricultural Research, said the woolly yaks were indicators of change in temperature on the mountains. The animal finds it difficult to tolerate the conditions at below 7,000 feet above sea level.
•“Rise in temperature forces the yak to go higher, which gives us an indication of fluctuations in the weather,” a scientist said.
📰 Undead section: On Section 66A of the IT Act
The invalid Section 66A is often invoked out of ignorance, but it serves as a tool of harassment
•It is quite disconcerting that the Supreme Court has been informed for the second time in two years that Section 66A of the IT Act, which was struck down as unconstitutional six years ago, is still being invoked by the police and in some trial courts. One can see why the Court deemed it “a shocking state of affairs” when a petition by the People’s Union for Civil Liberties (PUCL) came up for hearing. Section 66A made messages deemed by the police to be offensive or menacing to anyone, or those that caused “annoyance”, a criminal offence if these were sent through a computer or computer resource. It prescribed a prison term of up to three years on conviction. In its landmark judgment in Shreya Singhal (2015), the Court ruled that the provision was vague and violated the freedom of free speech. It was so broadly defined that it took into its sweep protected speech also, and therefore upset the balance between the exercise of the free speech right and the imposition of reasonable restrictions on it. In January 2019, too, the Court’s attention was drawn to the same problem of the invalidated provision being used by the police to register cases based on complaints. Not much seems to have changed since then, and it is quite surprising that the police headquarters and prosecutors in the various States had not disseminated the effect of the Court ruling among officers manning police stations.
•There were also instances of courts framing charges under Section 66A even after lawyers had cited the 2015 judgment. The PUCL has said as many as 745 cases are still pending in district courts in 11 States. It is not difficult to surmise that police officers who receive complaints and register them as First Information Reports may not be aware of the judgment, though one cannot rule out instances of the section being invoked deliberately as a tool of harassment. Ignorance of the law is no excuse for the citizen, and it must equally be no excuse for police officers who include invalidated sections in FIRs. Recently, police in Uttar Pradesh booked a journalist for defamation under Section 500 of the IPC, even though the Supreme Court has ruled that defamation can be pursued only by way of private complaints and there can be no FIR. The current hearing may result in directions to States and the police, as well as the court registries, for appropriate advisories to both station-house officers and magistrates, but it is not necessary for those concerned to wait for such orders. Police chiefs and the directorates of prosecution must proactively begin a process of conveying to the lower courts and investigators all important judgments and their effect on the practices relating to investigation, prosecution and the framing of charges from time to time.
📰 The bar on criticism that muzzles the advocate
The new Bar Council of India rules fly in the face of constitutional guarantees of free speech and freedom of profession
•On June 25,2021, amendments to the Bar Council of India rules which govern the professional conduct and etiquette of advocates were notified. They render advocates liable for disciplinary proceedings for making disparaging statements about a court, judge, the Bar Council of India (or State Bar Councils) or its members. The consequences include suspension and disbarment. The amendments clarify that “… healthy and bona-fide criticism made in good faith, shall not be treated as a ‘misconduct’”.
•Challenges were mounted before various High Courts immediately after the amendments were notified. The Bar Council of India, in response, has kept the rules in abeyance, pending a review by a committee comprising senior advocates, members of bar associations and the Bar Council of India. The amendments also require the Chief Justice of India’s approval before coming into effect, which has not yet been obtained.
The intent is clear
•The intent behind these amendments is betrayed by events that preceded their introduction: On May 25, 2020, 22 senior advocates addressed an open letter urging the Supreme Court of India to intervene in the migrant crisis. A retired judge of the Supreme Court also wrote an article on May 28, condemning the Court’s inaction in this regard. In response, the Bar Council of India issued a press release on May 30, characterising the criticism as a “sustained and synchronized attack on Supreme Court (sic)” by “disgruntled members of the bar and some unhappy and disappointed former judges”.
•This was followed by an attack on a legal news portal (Live Law) for an article that was critical of the Bar Council of India Chairman, Manan Kumar Mishra. The article noted how the Chairman accused certain advocates of politicising the Bar, while himself openly professing his allegiance to the Bharatiya Janata Party (BJP). In 2014, as Chairman of the Bar Council of India, he pledged his support for the party and Narendra Modi, holding himself out as the representative of India’s nearly 1.7 million advocates.
•In 2016, he addressed a fawning missive to Prime Minister Modi (on the Bar Council of India letterhead), describing him as the “most efficient and able leader of the world”. The article recounted how the Chairman championed a ‘Men Too Movement’ following the sexual harassment complaint against former Chief Justice of India Ranjan Gogoi, and also denounced anti-Citizenship (Amendment) Act protesters as “illiterate, ignorant mass”. In each of these actions, Mr. Mishra claimed to speak on behalf of the Indian Bar, and the article deprecated this improper use of public office.
•There was swift retaliation to the Live Law article. A Bar Council of India resolution, condemned the author for “scandal mongering and vilification”, and resolved to take action against the author and Live Law. The resolution extolled (without specifics) the “…laudable acts done and being done by the [Bar Council of India Chairman] for promotion of a strong, vibrant and independent Bar and Judiciary”.
A chance for a review
•It was in this backdrop that on June 3, 2020, while India was in the throes of an unprecedented novel coronavirus pandemic, and access to justice was severely impaired owing to the limited functioning of courts, the Bar Council of India convened a meeting and proposed amendments to the rules for professional conduct.
•Contemporaneously, the Supreme Court made its views on censure of the judiciary clear: at a time where only matters of exceptional urgency were being entertained during the pandemic, the Court carved out an inordinate amount of time to charge individuals (including advocate Prashant Bhushan) with criminal contempt for critical remarks about the Supreme Court. Today, the Court under the Chief Justice of India, N.V. Ramana, along with the Committee reviewing the new rules, have an opportunity prevent a further assault on free speech by rejecting the amendments.
•Historically, our country’s speech laws have served to fortify persons and institutions of power, while silencing those assailing their actions. Laws (such as sedition and criminal contempt) perpetuate the fiction that the authority of these institutions rests on the fragile foundation of ‘public faith’, and that dissent would impair the ability of powerful institutions such as courts and government bodies to carry out their duties. This notion is a bogeyman that has been used to silence critics, and is a colonial and feudal relic. State institutions derive their authority from the power vested in them by the law, and nothing else. Criticism (no matter how trenchant) is essential to hold these institutions accountable, and strengthen them.
A chilling effect
•The new Bar Council of India rules fly in the face of basic constitutional guarantees of free speech and the freedom of profession. The events preceding the introduction of the amendments demonstrate how limited the scope for “healthy” criticism under the new rules would be. Further, even if disciplinary proceedings under the new rules (should they come into effect) do not result in serious consequences such as disbarment, the pain of the process and the possible consequences to the careers of advocates would have a chilling effect.
•The Bar Council of India’s statement (suspending the amendments pending review by the committee) notes that “no prudent and real Advocate would oppose [the new rules]” and that “Some people are in the habit to object to each and every reformative step, but [the Bar Council of India] is not going to succumb to any such undue pressure”. Hopefully, the Bar Council of India’s statement is not a chronicle of a charade foretold, and the amendments will be reviewed objectively.
•‘Professional conduct and etiquette’ is an enigmatic phrase for the Indian Bar, as it is hard to fathom what the aspirational standard is. Recently, the Solicitor General, Tushar Mehta, was questioned in court about the Government’s defaults on its oxygen supply commitments during the second wave of the pandemic. In response, he said that ‘we have to act as responsible individuals’ and not as ‘unhappy girlfriends’, and added, ‘Let’s try and not be a cry baby’. Mr. Mehta’s response was not only unprofessional but was also unsuitable for the issue of citizens being starved of oxygen. But his words are perhaps a fitting response to the Bar Council of India and other institutions that are rankled by criticism from citizens who have every right to raise their voices against authority in a democracy.
📰 In defence of India’s noisy democracy
In the current moment, it is important to be clear why comparisons with China are not only specious but also dangerous
•China’s developmental pathway over the last century has been spectacular. No country in history has ever grown faster and more dynamically. Not only have hundreds of millions been lifted out of poverty, but social indicators have improved dramatically. India’s developmental record has been much more mixed. Since the 1990s, the Indian economy has grown impressively, but it remains far behind China in its global competitiveness. Poverty has come down, but employment prospects for the majority remain limited to low-wage informal sector jobs that are, by definition, precarious. Maybe, most startling of all, improvements in basic social development indicators have lagged, so much so that as Jean Drèze and Amartya Sen have pointed out, India has actually fallen behind Bangladesh and Pakistan.
The ‘too democratic’ line
•Comparing these track records, some commentators, including voices in the Government, have drawn a facile lesson. India’s problem is that it is just too democratic. Unlike China, making and implementing key decisions about public investment and various reforms is impossible in the din of multiple and contradictory democratic voices. What is needed are firmer and more independent forms of decision-making that are insulated from this cacophony.
•This line of thinking has at various times been embraced by sections of the Left (Leninism) and multi-lateral technocrats and bankers, but, increasingly, has become the animating fantasy of right-wing leaders and movements, ranging from elected autocrats such as Donald Trump, Brazil’s Jair Bolsonaro and Narendra Modi. The strangeness of these bedfellows alone should be cause for alarm. But in the current moment, it is especially important to be clear why comparisons with China are not only specious, but very dangerous.
•The claim that less democracy is good for development does not stand up to comparative, theoretical and ethical scrutiny. Contrary to those who believe economic management cannot be left to the whims of democratic forces, the comparative evidence clearly shows that democratic regimes have on balance performed better than non-democratic regimes.
•China, with a history of state-building going back two millennia, and an exceptionally well-organised, disciplined and brutal form of authoritarianism, has done especially well in transforming its economy. Africa and West Asia, where authoritarian governments of every stripe have dominated, remain world economic laggards. The Latin American military dictatorships of the 1960s and 1970s had a terrible economic and social record, and it was with the return of democracy and the “pink wave” of Left populist parties that prosperity and social progress were ushered in. Taiwan and South Korea are also instructive. Their economic take-offs happened under military regimes and relied on labour repression. Their transitions to democracy saw their economies move up to the next level and become much more inclusive.
Democracy and development
•Most pointedly though, one only has to look within India to understand how development and democracy can thrive together. By just about any measure, Kerala and Tamil Nadu have done more to improve the lives of all their citizens across castes and classes than any other States in India and it is no coincidence that both have also had the longest and most sustained popular democratic movements and intense party competition in the country. In contrast, in Gujarat, where single party Bharatiya Janata Party rule has been in place for nearly a quarter century, growth has been solid but accompanied by increased social exclusion and stagnation in educational achievement and poverty reduction. The comparative record leaves little doubt that on balance, democracies are better at promoting inclusive growth.
•The theory behind the authoritarian fantasy also does not hold up. First, the assumption that authoritarianism supports forms of decision-making that can rise above the hubbub of democratic demand-making to get things done presumes that those in command will serve the general interest rather than catering to the powerful and that when they enjoy such autonomy, they actually know what to do with it. This is just hubris. On both these points, democracies are in fact more likely to meet the necessary conditions for successful decision making. Elected representatives, no matter how venal, have to win re-election, which means answering to a broad swath of the electorate.
It allows negotiation
•The conflicts and noise that democracy generates may complicate things, but in the end, having to respond to a broad spectrum of interests and identities not only protects against catastrophic decisions, but actually allows for forms of negotiation and compromise that can bridge across interests and even balance otherwise conflicting imperatives for growth, justice, sustainability and social inclusion. The remarkable progress the United Progressive Alliance governments made in building a welfare state (National Rural Employment Guarantee Act, the Right To Information, the right to food and other programmes) is a testament to how a democracy can master even the most complex policy goals. As democratic theorists have long argued, the common good cannot and should not be determined by science, profits, technocrats or autocratic fiat. What it is and how we get there can only emerge out of sustained societal deliberation.
A look at China
•India’s tryst with democracy was born not only of its liberation movement but also of its affinity with what makes democracy ethically unique: it promotes equality by endowing all citizens with the same civic, political and social rights even as it protects and nurtures individuality and difference. And this is where the China-India comparison is so problematic, indeed unconscionable.
•However one might like to measure or evaluate China’s development successes, there is no way to discount the human cost of the party-made great famine that took some 35 million lives, a cultural revolution that made enemies out of neighbours, a one child policy that devastated families and erased a generation or the violent, systematic repression of the Uyghur Muslim and Tibetan minorities. These were not unfortunate excesses or the inevitable costs of development. These were and are the irredeemable instincts and predations of an authoritarian state, one which now denounces as “historical nihilism” any interpretations of the past that challenge the party’s official history. Conversely, while India’s democracy has been quarrelsome, cumbersome and often dominated by elites, it has also opened social and political spaces for subordinate groups and has built a sense of shared identity and belonging in the world’s largest and most diverse society. It has preserved individual liberties, group identities and religious and thought freedoms, all the things that confer recognition on human beings. To even pose the question of a trade-off between these freedoms and the role they have played in building a pluralistic nation and some cold, utilitarian calculus of “development” not only does violence to the very idea of human agency and dignity but completely abstracts from the very different social and historical realities of India and China.
There is a backslide
•Beyond these comparative arguments for democracy, one need look no further than the object lesson the BJP government has provided to dismiss the authoritarian fantasy. The democratic backsliding has been clear. The Government has not only sought to centralise, insulate and personalise decision-making but has also aggressively undermined the independence of democratic institutions and silenced and imprisoned Opposition voices, all in the name of nationalism and promoting development. Yet, the development track is dismal at best. While corporate business interests and the billionaire class have flourished, the overall economy has sputtered and since COVID-19 has experienced the worst contraction of any sizeable economy in the world. Demonetisation and the disastrous response to the second COVID-19 wave were not just instances of utter policy incoherence fuelled by the sycophancy and myopia that comes with an inwardly focused government, but exposed a degree of callousness and arrogance rarely seen in a democracy. On the social front, the pursuit of Hindutva — a prototypical variant of authoritarian ethnic nationalism — has shaken India’s democratic norms and institutional foundations and weaponised a politics of polarisation and demonisation that threaten to unravel the social fabric of the nation.
•Rather than look to China, it is time to defend the noise of Indian democracy.
