📰 Supreme Court’s views on ‘Indianisation’ of the legal system have varied
The CJI has reiterated ‘practical realities’; Justice S. Abdul Nazeer has underscored ‘decolonisation’
•At least two Supreme Court judges have in the past few months openly expressed the need to “Indianise” the legal system.
•In September, Chief Justice of India N.V. Ramana had called for the “Indianisation” of the legal system to provide greater access to justice to the poor as the “need of the hour”. “When I say ‘Indianisation’, I mean the need to adapt to the practical realities of our society and localise our justice delivery systems… For example, parties from a rural place fighting a family dispute are usually made to feel out of place in the court,” the CJI had clarified.
•On December 26, Justice S. Abdul Nazeer went a step further to underscore the need to chuck the colonial legal system detrimental to national interest and embrace the “great legal traditions as per Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India”.
•Justice Nazeer, speaking on the ‘Decolonisation of the Indian Legal System’ at the National Council meeting of the Akhil Bharatiya Adhivakta Parishad in Hyderabad, wondered what the “future model of our legal system ought to be”.
•He had concluded that “there can be no doubt that this colonial legal system is not suitable for the Indian population. The need of the hour is the Indianisation of the legal system… to decolonise the Indian legal system”.
•“Great lawyers and judges are not born but are made by proper education and great legal traditions as were Manu, Kautilya, Katyayana, Brihaspati, Narada, Parashara, Yajnavalkya and other legal giants of ancient India...continued neglect of their great knowledge and adherence to alien colonial legal system is detrimental to the goals of our Constitution and against our national interests,” Justice Nazeer had said.
•However, Supreme Court judgments themselves show that the Indian legal system had made an early start at consciously getting rid of the “crutches” of colonial influence. The evolution of laws in India has been through legislation and the binding precedents of the Supreme Court under Article 141 of the Constitution. The public interest litigation mechanism is truly Indian.
•“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes from, but we have to build up our own jurisprudence,” the Supreme Court, speaking through then Chief Justice of India P.N. Bhagwati, had said with confidence in the M.C. Mehta case way back in 1986.
•Again, the highest judiciary has far from indulged in a “continued neglect” of the legal greats of ancient India. Several judgments since the 1980s refer to the works of Manu and Kautilya.
•In the privacy judgment, Justice (retired) S.A. Bobde, referred to how “even in the ancient and religious texts of India, a well-developed sense of privacy is evident”. He mentions that Kautilya’s “Arthashastra prohibits entry into another’s house, without the owner’s consent”.
•But the court has also differed from the views of these ancient texts.
•In its Joseph Shine judgment decriminalising adultery, the court refers to how “the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment”.
•In the Sabarimala case, the court points to the Manusmriti to observe that in these “ancient religious texts and customs, menstruating women have been considered as polluting the surroundings”.
•It went on to hold that “practices which legitimise menstrual taboos, due to notions of ‘purity and pollution’, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere”.
A reflexive resort to the anti-dumping duty risks skewing market dynamics
•The Central Board of Indirect Taxes and Customs (CBIC) recently notified the imposition of anti-dumping duty on five products manufactured in China in order to safeguard domestic producers from lower-priced imports that the Directorate General of Trade Remedies (DGTR) had found as being ‘dumped’ in the Indian market. The items range from specific flat-rolled aluminium products for solar modules, and silicone sealants used in the manufacture of solar photovoltaic modules to some chemicals, including a component of the refrigerant hydrofluorocarbon. In almost all the five products, the Commerce Ministry agency initiated its anti-dumping investigations in September 2020 and reached its final findings about 12 months later. CBIC’s imposition of the anti-dumping levy for five years on these Chinese products is based on the DGTR’s findings that their import constituted ‘dumping’, which was causing injury to local producers, and an ensuing recommendation that a protective duty was warranted. A remedy sanctioned by the WTO to protect a member country’s domestic industry from imports that have been priced at levels below those prevailing in the exporting nation’s home market, the anti-dumping duty has become one of India’s most widely used trade weapons, especially against a flood of cheaper Chinese imports. As of February 2020, India had imposed anti-dumping measures on 90 Chinese products, with another 24 China-specific anti-dumping investigations in progress at the time, according to a reply made in Parliament by Commerce Minister Piyush Goyal.
•The use of the specific trade remedy, howsoever warranted, does, however, raise questions. A reflexive resort to the anti-dumping duty, especially if the domestic applicant is a significantly large and relatively resilient manufacturer of the product, risks skewing the market dynamics in the Indian company’s favour, with both downstream industries, in the case of intermediate goods, and consumers likely to face the consequences of reduced competition on final prices. Also, efforts to narrow the sizeable trade deficit with China by targeted recourse to the levy have made little headway in addressing the widening gap as imports have continued to largely outpace India’s exports. The effectiveness of the measure in providing timely relief to smaller domestic manufacturers facing an existential crisis on account of suspected dumping has also been undermined in the past by a less than ‘swift’ process with the DGTR hamstrung by a personnel crunch. With companies worldwide now seeking to de-risk their businesses from an excessive reliance on China in the wake of the COVID-19 pandemic, the prospect of more capacity in that country turning surplus and being used to produce goods for dumping overseas increases. Indian policymakers have their task cut out to bolster trade defences in time.
📰 In Tamil Nadu, a lack of political will to end the Palk Bay conflict
It is time to encourage fishermen to adopt sustainable practices to put an end to the Palk Bay conflict
•Palk Bay, an important marine zone between south-eastern India and northern Sri Lanka, has been a source of dispute for long. The conflict between the two countries has flared up again with the arrest of 68 Indian fishermen, mostly from the Ramanathapuram and Pudukkottai districts of Tamil Nadu, by the Sri Lankan authorities between December 18 and 20 and the impounding of 10 boats for “poaching” in the territorial waters of Sri Lanka.
•Palk Bay, home to diverse resources including 580 species of fish, extends from Point Calimere of Nagapattinam district to Mandapam-Dhanushkodi of Ramanathapuram district over about 250 km. With a shallow and flat basin, the region has an average depth of about nine metres.
•The genesis of the dispute can be traced to the October 1921 negotiations between representatives of the Governments of Madras and Ceylon, as the Tamil Nadu and Sri Lankan Governments were called then, on the need for the delimitation of the Palk Strait and the Gulf of Mannar. It was in the mid-1970s that two agreements were signed by India and Sri Lanka, under which the International Maritime Boundary Line (IMBL) came into being. The IMBL made Katchatheevu a part of Sri Lanka, even though the islet, which former Prime Minister Indira Gandhi had once called a “sheer rock of no strategic importance”, was once an area under the zamindari of the Raja of Ramanathapuram.
•Contrary to the expectations that the agreements would settle the issues of boundary and fishing jurisdictions permanently, the pacts gave way to new problems, including the recurring incidents of Tamil Nadu fishermen crossing the IMBL and getting caught by the Sri Lankan authorities. On many occasions, several fishermen lost their lives. This year, five fishermen died in what was officially called collisions between their fishing boats and vessels of the Sri Lankan authorities.
•The asymmetric nature of fishing practices in Tamil Nadu and the Northern Province of Sri Lanka is said to be the cause of the problem. While the former’s fishing community uses mechanised bottom trawlers, its counterpart uses conventional forms of fishing, as trawling is banned in Sri Lanka. Tamil Nadu’s fishermen had the best run during the years of the Sri Lankan civil war with restrictions placed by the Sri Lankan Government and Tamil rebels on the activities of the fisherfolk of the Northern Province. Notwithstanding several risks and challenges, the fishermen of Tamil Nadu continue to cross the IMBL, as the Sri Lankan side of the Bay is considered to have more fishery resources than the Indian side.
•Even though a section of specialists favours the creation of an international institution of stakeholders for regulating the fishing sector in the Bay, attempts are on to wean away the fishermen of Tamil Nadu from bottom trawling. The deep sea fishing project, launched in July 2017 amid much fanfare, has not yielded the desired results. Relaxation of norms of the project is under the consideration of the Union Government, to draw greater response from the fishermen. Given the fact that deep sea fishing takes a longer duration and has a higher recurring cost per voyage than what the fishing community experiences currently, the need for providing continuous motivation to the fisherfolk assumes critical importance. Experts say various strategies, including the promotion of seaweed cultivation, open sea cage cultivation, seaweed cultivation and processing, and sea/ocean ranching should be adopted. There is a view that if the community is encouraged to form fish farmer producer organisations, it may take to sustainable fishing practices. For all this to happen, sustained public pressure and political will are a must.
