#3editorialesdeperiodicos

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The response to Delhi riots a story of missed opportunities | Opinion - editorials

Having been born and lived in Delhi for over five decades, the recent riots and inability of administration and law enforcing agencies to prevent and limit the violence in time shows how we remain vulnerable as a society to mob violence. Both the administration and police have vast powers for maintaining law and order under the Criminal Procedure Code, 1973, or CrPC. Police have vast preventive powers to stop anticipated acts of breach of peace. They can even arrest and detain persons who are about to commit offences (Sections 149, 150 & 151 CrPC.) A recent example of preventive arrest powers being used effectively to curb rabble rousing and violence is the detention of leaders and others in the erstwhile State of Jammu and Kashmir. Incendiary speeches and slogans, even if not strictly within the contours of criminal offences, can be subjected to preventive breach of peace laws applied effectively for over 700 years in England and over 150 years in India.In 2014, when a petition to seek curbs on hate speeches was sought before the Supreme Court, I was representing the Union Government. The top court noted the existence of laws, yet lamented the lack of implementation and wanted the Law Commission to look into the issue {Pravasi Bhalai Sangathan v/s UOI (2013)}.At the time, the court declared: “Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to de-legitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.”Yet, in dealing with recent incidents of hate speeches in Delhi and elsewhere, this declaration of law has been glossed over.To ensure that rule of law prevails and police do not prevaricate in registration of FIRs, a Constitution Bench of the Supreme Court in Lalita Kumari vs. Govt. of Uttar Pradesh (2014) mandated immediate registration of FIRs for offences. Yet, despite acts of hate speeches and incitement to violence, neither preventive action has been taken nor FIRs registered expeditiously.By allowing state agencies four weeks to respond, the courts lost the opportunity to enforce the law. The Supreme Court did attempt to correct this situation by fast-forwarding the high court’s hearing to Friday.But the apex court in Lalita Kumari’s case (paragraph 120.1) had been clear. It said “the registration of FIR is mandatory under section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation”.Yet, with the adjournment by the high court by four weeks, the mandate of the Supreme Court in Lalita Kumari’s case stands eroded. Post Lalita Kumari, high courts have routinely been approached seeking directions to the police to register FIRs and have done so. Cases of failure or delay to register FIRs have led to strictures being passed by the courts. Safety of citizens and non-citizens alike, is realized when our police and administration ensure strict compliance of the law. In 1968, the famous jurist Lord Denning said, “I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every Chief Constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observations on this place or that; or that he must, must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone”.Amongst all the limbs of government functionaries, it is the policeman who has a constant interface with the public. In India, a police officer wears many hats, far beyond the charter of his duties dealing with issues ranging from family matters, matrimonial law, missing children, protection of the elderly, law enforcement, intelligence gathering, investigation and prosecution. Delhi Police has always prided itself on its independence.What is crucial for the man on the street is timely preventive action by the police. While restrictions are in place and violence has ended, yet parts of Delhi have burnt, many are injured and killed and the public’s confidence in their safety stands eroded. This is not acceptable in 21st century India.(The author is a Supreme Court lawyer and former Additional Solicitor General of India) Read the full article

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Shikara is a tale of loss. It is not a story of hate, writes Vidhu Vinod Chopra - analysis

On Friday, I walked into a packed theatre for one of the first screenings of my latest film, Shikara. Three hundred people, most of them Kashmiri Pandits, stood up and applauded. But one lady at the back screamed that the film wasn’t representative of her pain. She wanted more. I was accused of commercialising the tragedy of a community which was exiled 30 years ago. I have spent many days thinking about what she said. And I realise that what she wanted was more hate. She wanted a film that demonised Muslims, and that sowed even more animosity and bloodshed. In fact, one of her issues with the film was that Muslim actors were playing Pandit characters. After a week of shrill accusations, controversy and introspection about what I could have done differently, I have come to the conclusion that I am not that storyteller. I will never peddle hate for profit. I started working on Shikara 11 years ago in 2008. This film was made as a tribute to my mother. She came to Mumbai from Srinagar for a week to attend the premiere of Parinda and could never return. She briefly went with me to Kashmir during the shoot of Mission Kashmir in 1999. She visited her home which had been looted by the militants. Everything was gone. Despite seeing her house ransacked, she kept saying that it will be fine one day. She hugged the neighbours and left with the hope, that some day, she can return. She died in exile in 2007. I am my mother’s son, and when I was making this film, the predominant thought in my mind was that my film should not incite violence. My ambition was to represent the reality fully, but without provoking the viewer to feel vengeful. So in the January 19, 1990 sequence, the militants who come to burn the Pandit homes are in the shadows. I purposely did this because I believe that violence is faceless. I hoped to begin a conversation with Shikara and I am happy to say that this has happened. I have received countless messages and emails from Kashmiri Pandits thanking me for bringing their story to the world. I feel fulfilled. As for the haters, I have only thing to say – as Munna put it so beautifully in Lage Raho Munnabhai – Get Well Soon! Vidhu Vinod Chopra is a film director, screenwriter and producer. His films include Parinda, 1942: A Love Story, the Munna Bhai series, and most recently, Shikara The views expressed are personal Read the full article

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Climate crisis: Budget makes the right moves - editorials

The Union Budget, which was presented on February 1, creditably took into account one of the most pressing challenges of our time — the climate crisis. With the implementation of the Paris Agreement commitments beginning on January 1, 2021, finance minister Nirmala Sitharaman made a concrete push for solar energy and clean air and signalled the end for old and polluting thermal power plants. While the environment ministry’s budget is proposed to be increased by nearly 5% to ₹3,100 crore over the ₹2,955 crore in the last year, the allocation to the ministry of new and renewable energy has been proposed to be increased by 10.62% from last year. The government also announced the expansion of the KUSUM scheme to enable about two million new farmers to install standalone solar pumps. Importantly, the finance minister also emphasised on enabling farmers to use their barren lands for installing grid-connected solar pumps. These steps are welcome. India is a climate-vulnerable country, and the nation must opt for a greener economic path if it wants to avoid the deleterious effects of changing climate, and also to meet the 2030 Sustainable Development Goals. However, the budget, many experts feel missed out the replenishment of the much-needed National Adaptation Fund for Climate Change. The fight against the climate crisis will be a long-drawn affair. But, as the minister said, India has submitted its Nationally Determined Contribution, under the Paris Agreement, on a “best effort” basis, bearing in mind the development imperative of the country. She also promised that the government is committed to taking actions in various sectors to reduce fossil fuel consumption. This promise to stay the course is commendable, considering India’s needs to grow and pull people out of poverty. Read the full article

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Budget 2020: Tactics over strategy - analysis

One way to understand the budget presented on Saturday is to focus on three key themes — the fiscal deficit, tax, and expenditure.The estimates presented in the 2019-20 budget were unrealistic, because the actual tax collections in 2018-19 had been much lower than those used as the basis. The corporate tax cut was also subsequently announced. Therefore, tax revenues were expected to fall short.The conflict over the Reserve Bank of India’s economic capital came to a head at an opportune time, yielding additional non-tax revenue. The 15th Finance Commission also gave a relief by reducing states’ share of centre’s tax collection by 1 percentage point. However, the shortfall in tax revenue and disinvestment receipts was much larger.Seeing these difficulties and expecting them to continue, the government has invoked the escape clause in the Fiscal Responsibility and Budget Management (FRBM) Act, and allowed itself additional fiscal deficit of 0.5 percent of GDP in 2019-20 and 2020-21. The statement to justify this is comprised of three short paragraphs, saying that the deviation is because of “the structural reforms such as reductions in corporation tax”. Overall, expenditure increased from 12.2 percent of GDP in 2018-19 to 13.2 percent of GDP in 2019-20 – the first fiscal expansion by Union government in recent years.Two points need to be considered regarding the deficit estimates.First, the government has now made it a norm to rely on extra-budgetary resources (loans from small savings fund to public sector enterprises; public sector enterprise bonds repaid by government) to finance its expenditure. Until last year, these seemed to be measures to avoid invoking the escape clause of the FRBM Act. This year, the government has invoked the escape clause, but it has also made the reliance on extra budgetary resources more formal. In 2019-20, ₹1.51 lakh crore were budgeted for Food Corporation of India (FCI) for food subsidy, but the revised estimates show only ₹75000 crore. The FCI is borrowing the remaining amount (and more) from small savings. This practice of putting the subsidy on budget at the beginning of the year, but giving less was going on since 2016-17. In 2020-21, the budgeted amount itself is less, and it is now a norm that loans from small savings will fund the food subsidy bill, among other things.Second, even the relaxed fiscal deficit targets will not be easy to meet. In 2020-21, the budget projections of gross tax revenues are ambitious, given the continuing slowdown and recent experience. The budgeted disinvestment and spectrum auction receipts are very ambitious. The state of the telecom sector does not support robust proceeds from spectrum auctions. Big ticket strategic disinvestment could help meet the target.While tax collection has been disappointing in recent years, tax disputes have been rising. Income tax collection under dispute increased from ₹2.2 lakh crore at the end of 2017-18 to about ₹4 lakh crore at the end of 2018-19. Corporation tax collection under dispute had increased from ₹3.07 lakh crore in 2016-17 to ₹3.99 lakh crore in 2017-18.Perhaps this is encouraging the government to change its approach. The FM expressed the intent to make the tax system more taxpayer friendly by empowering the taxpayer through a charter, reducing conflict with taxpayers, and other measures. This is a good step. However, the announcements in the budget are only a modest beginning.While the taxpayer’s charter appears to be a good move, the amendment to the income tax act says that the tax authorities will adopt and declare a charter. This is a principal-agent problem. If the Parliament or the Minister want to empower the taxpayers, they must give the basic charter in an instrument that cannot be changed by the very tax authorities whose discretion the charter will limit. This is more important because the division between tax policy and tax administration is not sharply defined in India. Further, a charter needs to be backed up by systems to enforce it. Otherwise, it is just a few nice, but ineffective, words.The scheme to reduce the number of disputes waives interest and penalties for those who settle. However, this only focuses on the symptoms of the problem. The amnesty will benefit those who think they are going to lose in the dispute, while those who think they are right are likely to continue the dispute, especially if the amounts are large. Even though it will lead to a reduction in the number of disputes, and might also benefit some hapless taxpayers who are tired of the dispute, the amnesty is asymmetric in the wrong way. Therefore, it is not clear whether it serves public interest. Disputes are symptoms of the problem, and not the problem.Building a tax administration that is both effective and fair is a big challenge for any country. While the government has expressed its intent, it should begin by reforming the tax laws and making structural changes to tax authorities.Looking at the expenditure decisions in the budget, two things are becoming clear.First, while the government has reformed the mechanisms of expenditure — of procurement processes and scale up of direct benefit transfer — it has little imagination to strategise on expenditure allocation. It seems to assume that every social and economic problem is amenable to a small government scheme. Experience tells us that such schemes keep piling up, and are easier to start than to close. Since there is no expenditure strategy, strange decisions are taken. In a difficult time as this, allocation to MGNREGS has been cut substantially. Second, some of the decisions taken during the previous tenure of the government are showing their consequences. A consequence of one rank one pension is that between 2015-16 and 2020-21 (budgeted), the average rate of increase in defence pensions is 17.3% per annum, while that for non-pension defence expenditure is 7.6%. Similarly, the cash transfer to farmers (PM-KISAN) is now a permanent part of the budget — about 2.5% of total budgeted expenditure.Overall, one can say that in spite of its political capital, this government prefers tactics and operations to strategy when it comes to the economy. Suyash Rai is a fellow at Carnegie IndiaThe views expressed are personal Read the full article

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Introduce the cheetah, with caution and guidelines | Opinion - analysis

In 2013, the Supreme Court (SC) delivered a judgment on lions in India. The judgment directed that the wild lion population confined to Gir in Gujarat should be given a second habitat in Madhya Pradesh within six months. This was to ensure the population’s survival in the case of catastrophic events. The same judgment also said a separate proposal to “reintroduce” cheetahs to India should not go ahead as cheetahs from Africa, available for the reintroduction, were not the same as the Asiatic cheetah, which became locally extinct in India after Independence. The 2013 judgment is considered a landmark because it laid out several progressive tenets, including the “species-best-interest standard”—stressing that policy should implement what is best for a wild species rather than what was best for people.Seven years later, the SC, in a January order, has said that cheetahs from Africa can be brought into India, an active move to associate cheetahs with India once again. This is interesting on two counts. First, the January judgment frames the introduction of the African cheetah as an “experimental basis in carefully chosen habitat”. This is new for conservation; an experiment which works towards de-extinction of a species gone for decades, rather than gradually setting up tones for “natural progression”. Second, the cheetah order comes in the shadow of the fact that the 2013 order on lions was never followed.The 2013 judgment hinged on the alien-ness of the African cheetah, as the subspecies is different from the Asiatic one. The Asiatic cheetah is now found only in Iran, which has too few cheetahs to send any to India. The new judgement stresses that bringing African cheetahs will not be a “reintroduction”, but an introduction. This is a bringing forth rather than a bringing back; an act that seeks to address extinction through a next-best substitute. The cheetah is considered part of Indian culture; the word chitra standing for variegated patterns. It is also the first notably Indian animal that went extinct in recent memory (other animals that went extinct from India were the pink-headed duck and Sumatran rhino, but they were not as well-known as cheetahs.) Thus, the cheetah inhabits a cultural box which is outside of purely scientific conservation. The question now is: What should be the species best-interest standard for cheetahs? Any move to address extinction is complex, and it becomes even more layered when it comes to large carnivores.The cheetah should not be brought to India if certain issues are not addressed. Equally, bringing the cheetah to India can address problems typical to carnivore conservation and neglected habitat. The question of habitat is important as we have shown a historical skew towards protecting lush green forests. The cheetah is a creature of drier, more neglected spaces — grasslands and thorn forest. Not looking particularly green nor with dense canopy cover, both grasslands and thorn forest have been burnt, cleared, converted into industrial zones or decreed as wasted areas. Bringing the cheetah to India should have a minimum requirement of setting up a grassland policy. Sites in discussion for cheetah colonisation include Nauradehi sanctuary in Madhya Pradesh or the Shahgarh landscape near Jaisalmer; but we shouldn’t consider cheetah introduction as a tightly-managed “experiment” only in these sites.Instead, a new grassland policy should address issues with grasslands sites specifically, and thorn forest more broadly. Grasslands need grazing policies and protection against conversion; and thorn forests need protection from being mined or sold. Both grasslands and thorn forests are legitimate, living ecosystems with iconic species such as the Great Indian Bustard, caracal and the Indian wolf but the fact that these species are declining is because their habitat is not valued. Conserving cheetahs will also mean dealing with conflict with people outside and in protected areas. While the relatively small cheetah is unlikely to have negative encounters with people, it may eat livestock. The model of co-existence with a carnivore constantly needs innovation and fine tuning. Studies show that where authorities are responsive in compensating kills or damage, there is less conflict with carnivores. Creating effective and quick conflict-resolution models should benefit the Indian wolf which shares a similar habitat. We also need to strengthen responses to invasive threats like domestic dogs forming packs and attacking wildlife, particularly outside protected areas. Some would say India should focus on the species it has; especially the ones that are in neglected areas like grasslands. Yet, if we admit that conservation is also cultural, bringing cheetahs to India — with a grassland policy and innovation in place — may be the shot of conservation optimism that grasslands and degraded forests need. What we don’t need is patriotism through animals; but what we still do need are new ways of seeing places that don’t look impressive to us. Neha Sinha is with the Bombay Natural History Society The views expressed are personal Read the full article

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‘Destruction of wetlands will lead to water, food and climate insecurity’ - analysis

Today is World Wetlands Day, which marks the date of the adoption of the Convention on Wetlands on February 2, 1971, in the Iranian city of Ramsar on the shores of the Caspian Sea. The 2020 theme Wetlands and Biodiversity is an opportunity to highlight wetland biodiversity, its status, why it matters and to promote actions to reverse its loss.Dr Ritesh Kumar, director, Wetlands International South Asia, speaks to Hindustan Times, on why wetlands are important and the state of wetlands in India. KumKum Dasgupta: Ten more Indian wetlands have been declared Ramsar sites. What is the importance of such a declaration?Ritesh Kumar: The designation of these 10 wetlands highlights their importance for conserving global biological diversity. As a global mega-diverse country, this is India’s contribution to conserving the global good. By designating wetlands to the Ramsar List, India commits to their wise use through the maintenance of ecological character. KD: Why it is important to save wetlands? What kinds of challenges do they face?RK: India has witnessed a rapid degradation of its wetlands. In the last three decades alone, nearly one-third of natural wetlands have been lost to urbanisation, agriculture expansion and pollution. The loss of wetlands in urban areas has been more rapid. Data from 26 cities and towns show that since 1970s, for every one square kilometre increase in built up area, 25 ha of wetlands has been lost. An ecosystem health assessment of wetlands under the 100 days programme of the Government of India indicated that one in every four wetlands had low to very low ecosystem health and faced high to very high threat. As wetlands degrade, so does their ability to make societies water, food and climate secure, and conserve the diversity of life. Wetlands loss needs to be seen not just as a biodiversity crisis, but as a development crisis, which could lead to more water, food and climate insecurity for society. A transformed response to address rapid wetlands degradation and loss would be to pursue the integration of wetlands, and their wide-ranging values, within developmental programming at various levels. KD: The environment ministry notified new wetland rules in 2017. But draft rules don’t mention anything about a national regulator and don’t list specific activities prohibited in these ecologically sensitive areas. Your comments? RK: The revision of the Wetlands (Conservation and Management) Rules, 2017, is to bring the role of state wetlands authorities to the fore for wetlands conservation. As the Rules have been framed under the Environment Protection Act, the ultimate responsibility rests with the ministry of environment, forest and climate change. KD: How important is community involvement to save wetlands?RK: Communities engage with wetlands in various ways – from seeking livelihoods to spiritual fulfilment. The values community hold for wetlands are expressed in diverse ways. It is important to integrate community linkages in wetlands management planning, and incentivise community stewardship. This is crucial as over 85% of wetlands in India are in the form of village ponds and tanks. Read the full article

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HT Editorial| Deepening India-Brazil ties

India’s interest lies in expanding relations with other regional powers and, therefore, it is appropriate for the Brazilian president, Jair Bolsonaro, to be Republic Day chief guest. Brazil has been a close multilateral partner in Indian foreign policy after the Cold War. It has been India’s closest partner in BRICS (Brazil, Russia, India, China and South Africa), and cooperated in dealing with the climate crisis, Security Council reform and South-South cooperation. Many of these have been aspirational, and stronger on joint statements than tangible results. One reason for this is the lack of economic and strategic links between tier-two powers. Mr Bolsonaro’s visit seeks to address this gap. In a world marked by increased geopolitical rivalry and reduced multilateral cohesion, many two-tier nations are strengthening relations. The most striking example in the Indian context has been the deep relationship that has emerged with Japan. This is also why New Delhi has countries like France, Indonesia and Australia on its strategic list in the coming years. Brazil, overwhelmingly dominant in South America, is an obvious country for India to seek a closer engagement with. While geography limits security cooperation, unusually for a Latin American leader, the Brazilian president has expressed concerns about China’s rise. India could also take some development lessons from Brazil. This is an emerging economy that has implemented universal health care, successfully adopted genetically modified crops and navigated the process of urbanisation. Mr Bolsonaro has made deeply objectionable statements about women and climate. His government is responsible for policy changes that have caused extensive destruction of the Amazon forests. This cannot be endorsed, but it also cannot be the basis for determining inter-State relations. A mature foreign policy is driven by interests. Brazil holds elections. Its people are best placed to judge the quality of their president. India will seek to persuade the Brazilian leader, despite his climate scepticism, to ratify the International Solar Alliance. New Delhi’s primary interest is that the Brazilian leader takes business seriously and wants to use economics to add muscle to the bilateral relationship. Brazil needs to be more to Indians than just football. Read the full article

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Taxing that extra bottle can wait

The commerce ministry has suggested, as part of its Budget recommendations to the finance ministry, that people be allowed to buy just one litre (or a bottle) of liquor at duty-free shops when they enter India, down from the current two litres. It also wants to bar the purchase of cigarettes at duty-free shops for people entering India. Both measures are ostensibly aimed at minimising the quantum of non-essential imports, and also adopting the prevailing rules in some other countries. The United States and Singapore, for instance, allow only one litre of liquor to be bought into the country, although the latter also allows a litre of beer and a litre of wine in addition. Singapore bars the purchase of cigarettes at duty-free shops by people entering the country, although the US allows the purchase of up to a carton. But it isn’t clear why the ministry has made the suggestion on limiting duty-free liquor purchases now; nor is it clear how much revenue the government foregoes because of the sale of liquor in duty-free shops. While applicable only to the minority of Indians that travels abroad, around 50 million by some estimates (and this probably includes some amount of duplication), the move is likely to be hugely unpopular. Unlike the 1990s and perhaps even the 2000s and part of the 2010s, it isn’t as much about availability now as it is about prices. And for many Indians travelling abroad, especially on pleasure, the duty-free shopping bargain, especially for liquor, is definitely part of the whole experience. Unfortunately, the suggestion — it is still that — reflects a focus on minutiae that does not help the government’s image. There are more pressing problems that the commerce ministry needs to address, starting with ways to revive India’s export growth. Taxing that extra bottle can wait. Read the full article

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Disentangling the threads of a broken criminal justice system - analysis

After not publishing the annual Crime in India Reports for almost two years, the National Crime Records Bureau (NCRB) recently cleared its backlog, by sharing reports for both 2017 and 2018 in the past month. Considering how voluminous and complex these documents are, it is encouraging to find newspapers — including this publication — take the effort of presenting the information in a digestible manner, spurring debate and discussion. To a large extent, these efforts end up spurring criticisms and laments about one thing — that the Indian criminal justice system is being crushed under its own weight, with delays now plaguing all the units that make up this system. The conversations following this output of data have been largely predictable — get more judges, more courts, and stricter timelines in place, and things will get better. These investments in the system’s infrastructure will surely help. However, it is foolhardy to think that a pendency level of almost 25 million cases at the trial court level is being caused only because of poor infrastructure.In a new paper (written and published before the NCRB released its data for 2017 and 2018), I argue that a fair share of the blame for India’s long-standing crisis of pendency in the criminal justice system lies in how our system is being operated. Or, put another way, we have millions of cases pending in trial courts not because we have a perfect system which is broken, but because the system itself is being worked in ways that are bound to cause delays. As it stands, the Criminal Procedure Code 1973 has many funnels in place. These kick-in from the investigation stage itself, to test whether a given case really deserves to go to trial or not. The funnels vest discretion in the individual officers, be it police officers or the magistrates, who decide whether or not there is sufficient basis to proceed further with a case at each stage. This makes sense. Trials are long-drawn procedures, which come at significant costs for taxpayers, and also cause great hardship to persons who are accused without credible material. Under this mindset, it does not make sense to send every case for trial, and it is accepted as a bitter truth that some guilty people are bound to escape the law, for there is no perfect system.A close look at the NCRB data suggests that the manner in which the criminal justice system is being run is almost entirely contrary to the manner in which the statute is designed. The funnels have been rendered redundant, with the police filing chargesheets in almost every case, and the judges treating trials as the default procedure. Consider the latest NCRB numbers. For Indian Penal Code (IPC) offences, police file chargesheets in almost 70% of cases, and judges take up trials in a staggering 89% of the total cases that they disposed off. It is hardly a surprise, then, that almost 50% of these trials end up in acquittals (and, since this is an average figure, it masks what are wildly varying rates of acquittal for specific offences).My preliminary research in this area, based on experiences in Delhi, suggests that the answers for “why trials?” are complex. At the level of police investigations, one factor appears to be the distrust of police discretion, leading them to recommend most cases for trial. The situation in courts is different. Here, a long-drawn trial ends up being the rational choice for all actors in the system, where these actors are guided by different connected considerations. For instance, an accused person knows the conviction rate is low and is happy drawing a matter out; in the case of an indigent defendant, legal aid lawyers may be driven to opt for trial, since in many States they are paid on an appearance basis. At the same time, when parties are interested in settling a dispute, they are often barred from doing this at the level of the trial court itself and have to go before the high court. Judges and prosecutors may be driven to opt for trials because of more bureaucratic tendencies. Judges are hard-pressed to “manage” their caseload, and thus may simply avoid hard decisions to maximise the disposal of cases on a daily basis. Similarly, even though the prosecutors are given the discretion to, say, recommend withdrawal of what they think are bogus chargesheets, ultimately they are also part of a bureaucratic structure, where every step they take requires prior permissions and many explanations. Ultimately, the easier choice is to simply go with the flow. To a certain degree, trials are supposed to be cumbersome, taxing, and time-consuming, for, at the end of the day, an individual’s liberty is at stake. Thus, to argue that the law should “make trials faster” to reduce delays is, frankly, wrong. What that leads us to are farcical procedures, which end up being set aside in appeals and compounding injustice. Rather, we need to shift the conversation to ask why have the filtering processes been abandoned, and why are there so many trials happening in the first place? Abhinav Sekhri is a Delhi-based lawyer. The paper referred to appears in volume 15(1) of the Socio Legal ReviewThe views expressed are personal Read the full article

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The transformation in the oil market aids India - editorials

Oil prices were once the Damocles sword over the Indian economy. That may be changing, though not because of any internal reform. The change has come from the technological revolution in oil supply and the spread of renewables and natural gas on the demand side. The world today is awash in oil. Despite cuts by the Organisation of Petroleum Exporting Countries (OPEC), sanctions on Iran, production collapses in Venezuela and Libya, global oil prices are today only $60 a barrel. India is extraordinarily susceptible to oil crises. The 1973 OPEC oil crisis and the Persian Gulf war of 1991 brought the country to its knees. The first one triggered inflation and social unrest that, arguably, led to the Emergency. The second caused a balance of payments crisis, forcing India to pawn its gold reserves. But the age of black fear is entering its twilight. The oil sector is today unrecognisable. A decade ago, the United States’ Energy Information Administration predicted oil prices would be $100 today. The most striking error was predicting that the US would be importing eight million barrels of oil a day when it has instead become a net exporter. A war that blocks all Gulf oil exports would still plunge India into recession. But today, it is buyers who have the advantage. Which is why Saudi Arabia and Iraq offer to guarantee supplies to India, the world’s fastest-growing importer of the black gold. Read the full article

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Imran’s paradox: Legal wins, political troubles - analysis

Pakistan Prime Minister Imran Khan has warded off strong challenges from his political opposition, including a stiff one from Maulana Fazlur Rehman, who launched a march to Islamabad last month to topple the Tehreek-e-Insaf government. But, for Khan, the challenges posed by the recent judicial decisions are proving to be much bigger political headaches. First came the suspense over the extension of the Chief of the Army Staff (COAS), General Qamar Javed Bajwa’s tenure during the last week of November. General Bajwa’s three-year tenure was to end on November 28. However, a notification signed by Khan on August 19 stated that General Bajwa was “appointed for another term of three years from the date of completion of current tenure”. The decision was justified on the basis of the “regional security environment”. On November 26, a three-judge bench of the Supreme Court, headed by chief justice Asif Saeed Khosa, rejected an application to withdraw the petition, questioning the extension, declaring that it fell in “the domain of public interest”. During the hearing, Attorney General (AG) Anwar Mansoor Khan failed to explain how the PM had issued the notification when the appointing authority is the president. A presidential order described it as “extension” while the PM had mentioned “reappointment”. Further, since only 11 Cabinet members out of 25 were present when the decision was taken, how had the views of the other members been ascertained? Dismissing the AG’s defence, citing “clerical error”, the bench suspended the extension order. Law minister Farogh Naseem resigned to appear as defence lawyer for General Bajwa. The following day, questions regarding the tenure of the COAS, the terms and conditions, retirement perks and precedents could not be answered. The bench dismissed a second notification produced by the AG, declaring that it failed to meet the test of law, procedure and justifiable grounds for extension.Finally, on November 28, the court approved a third notification “appointing General Bajwa as COAS under Article 243(4)(b) of the Constitution for a period of six months with effect from 28.11.2019”. The government provided an undertaking that parliament will pass legislation to determine “tenure” and “terms and conditions of service”. The judgment has diminished the army by exposing the COAS’s untrammelled powers, as well as the ineptness of the civilian government. The second judicial decision to pose a challenge came on December 17 when a special court, headed by Peshawar High Court chief justice Waqar Ahmed Seth, convicted former COAS General Pervez Musharraf of high treason, awarding him a death sentence. The treason case pertains to the declaration of a state of emergency on November 3, 2007, following his showdown with the judiciary. After the election of a Pakistan People’s Party government in 2008, a deal was brokered for President Musharraf to step down in return for promised indemnity. The situation changed when Nawaz Sharif came to power in 2013 and charged him with treason. The trial began after the indictment on March 31, 2014.Despite being summoned repeatedly, General Musharraf never testified and left the country for medical treatment in March 2016. The then army chief, General Raheel Sharif, made it clear that the army was not going to disown one of its own, stating that “the army will preserve its own dignity and institutional pride”. After General Musharraf was declared an absconder and following the apex court’s direction, the special court moved forward with the trial. Nervous about the outcome, the government sacked the prosecution team on October 23, and got a restraining order from the Islamabad High Court to prevent the pronouncement of judgment on November 28. On December 5, a new prosecution team asked that former PM Shaukat Aziz, law minister Zahid Hamid and chief justice Abdul Hameed Dogar be included as suspects for advising General Musharraf. The special court advised prosecution to file fresh indictments against the three and proceeded to announce its verdict. Major General Asif Ghafoor, director-General, Inter Services Public Relations Pakistan, questioned how Musharraf could be named a traitor, and said that the decision “has been received with a lot of pain and anguish by the rank and file”. In the detailed judgment, Justice Seth had added that if found dead, the fugitive’s corpse “be dragged to the D-Chowk (in front of the Parliament House) and be hanged for three days”.Having won the case, Imran Khan’s government is backing off furiously from its victory. It has decided to file a case against Justice Seth before the Supreme Judicial Council. AG Mansoor has said that the government will appeal against its “victory” in the Supreme Court.For Imran Khan, who owes his elevation to the tacit backing of the army, legislating rules governing tenures of army chiefs in Pakistan is a politically charged exercise, and he would want support from Zardari and Sharif. However, having been treated harshly by the government, Zardari and Sharif may have other ideas, and use the growing tensions between Imran Khan and the army to their advantage. Both judgments strengthen civilian authority, but for Imran Khan, these are serious political headaches.Rakesh Sood is a former diplomat and currently distinguished fellow, Observer Research FoundationThe views expressed are personal Read the full article

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Jharkhand mandate: Is BJP losing its magic touch in tribal areas? - analysis

After having swept the state in Lok Sabha, the loss of Jharkhand Assembly elections is likely to hurt the Bharatiya Janata Party (BJP) as a key province dominated by the tribal section of the population has slipped out of its fold.Jharkhand has followed the neighbouring state of Chhattisgarh where too the BJP was voted out of power in the state Assembly after having ruled the state for 15 years on a trot. In Chhattisgarh, the Congress had won a thumping three-fourths majority.In this backdrop, the BJP would have liked to get back strongly in Jharkhand. However, faced with massive infighting and struggling for tribal support, it couldn’t even emerge as the single largest party.That Chief Minister Raghubar Das was not a tribal, unlike all his predecessors, was another fact that did not prove to be helpful.Significantly, both states were created by the BJP which also went on to dominate the politics in this region.The trend, however, was not just limited to these two states as even in the Madhya Pradesh Assembly elections, the BJP candidates had found the going tough. The party could win only a third of the over 40 seats with a significant tribal population in 2018. In the previous state polls, the BJP had clinched a majority of them.Significantly, Odisha is another state with a sizeable tribal vote where the BJP, with Jual Oram at the helm, has made rapid strides in terms of vote bank. But with the Navin Pattnaik-led Biju Janata Dal (BJD) maintaining a firm grip on power, the saffron party has had to remain content with being second best.Not just the BJP, even its ideological mentor, the Rashtriya Swayamsewak Sangh (RSS) has also consistently focused on engaging with the tribal segment of the population.The RSS, through its organization Vanvasi Kalyan Ashram, has actively engaged with tribal population across states.When contacted, Pramod Petkar, the Prachar Pramukh of the Vanvasi Kalyan Ashram, however, said the aim of his organisation was primary welfare, protection of rights and addressing issues like providing employment and education to the tribal section of the society.There can be times when an associated person may take part in the electoral process but that is in their personal capacity as a citizen, he said.“Our work continues regardless of who is in power,” he said though adding that it is always beneficial if the people at the helm are working without any bias. Read the full article

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Maintaining order is important. But so are the rights of citizens - editorials

On Thursday, those opposed to the passage of the Citizenship (Amendment) Act planned protests across the country. This was in accordance with the constitutionally guaranteed rights of citizens within the Indian democratic framework. The government’s response should have been simple. Ensure police presence to maintain order, while enabling citizens to exercise their rights. This is easier said than done, especially given events of the past few days in the national capital (the Jamia Millia Islamia and Seelampur violence), but it is what the government should have tried to do. Instead, in many parts of the country, the governments concerned decided to impose Section 144, which prohibits gatherings of more than four people, and places other restrictions on personal liberty. This was done across Uttar Pradesh and Karnataka, both governed by the Bharatiya Janata Party, and parts of Delhi. The violence seen in parts of Karnataka, especially Mangaluru, and Uttar Pradesh (in Lucknow) may have vindicated this approach, but in the Capital, and in Bengaluru, it had the flavour of overreach. In the Capital, for instance, where law and order falls directly under the Centre, mobile services providers were ordered to suspend services and block Internet in a few locations (the first time this is happening in the capital city); barricades were placed to restrict entry of people into the city at borders resulting in gigantic traffic jams and causing many to miss flights and trains; and close to two dozen metro stations were shut down causing inconvenience to thousands of commuters.It isn’t clear whether there was specific intelligence that prompted the imposition of Section 144 in Delhi and Bengaluru. In both, protestors, armed only with posters and pamphlets, many of whom were detained and later released, said the executive has directly impinged and violated their fundamental right to free speech and to free association and assembly. In contrast, in Mumbai, Section 144 wasn’t imposed, and the protests were peaceful and non-disruptive. This newspaper has stood against violent protests, as in Delhi’s Seelampur on Tuesday. But using the threat of violence, or painting protests as a conspiracy by political rivals who have repeatedly shown themselves as organisationally incapable of stitching together such national protests, cannot be an excuse to curb fundamental rights. History shows that dissent can’t be sustainably contained by simply deploying greater force. The onus lies squarely on the government to break out of this cycle, find a political solution to the controversy, but most critically, respect the right of the Indian citizen to speak, protest, move and assemble freely — as long as there is no threat to peace. Read the full article

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The Republic at 70: Celebrating the Constitution - editorials

Sunday marks the 70th year of the adoption of the Constitution of India. This is a moment to celebrate the country’s rich legacy as a Republic, to pay tribute to all those who helped it evolve as a constitutional democracy and nurtured its traditions, and also to reiterate the commitment to preserve constitutional values, which have been so precious, and have shaped the Indian State as well as the Indian society. When, on January 26, 1950, India became a Republic, few gave the polity a chance. After all, this was a society divided by caste and religion; it was deeply unequal and hierarchical; poverty and illiteracy were rampant; it had just gone through a violent Partition. Yet, the audaciousness of the drafters of the Constitution was that in this seemingly inhospitable landscape, they invested in creating a democracy — with periodic elections and universal adult franchise; fundamental rights for citizens; an independent judiciary; a complex federal structure; a deep commitment to equality and non-discrimination, especially on lines of identity. Sceptics had history on their side. No other country of this size, diversity and socioeconomic indicators had become a full-fledged democracy. But India’s founders had idealism, commitment and pragmatism on their side. Their vision prevailed. There have been challenges, of course. Indian constitutional democracy faced its most severe test in 1975 — when the then Prime Minister, Indira Gandhi, proclaimed an Emergency and suspended fundamental rights. Fortunately, this period lasted for only two years. While growth has brought millions out of poverty, the persistence of poverty is a betrayal of the vision of the founders. While caste hierarchies are less entrenched today than the past, the persistence of structural discrimination, unequal opportunities, and untouchability is a black mark on India’s record. While the country has remained secular, the persistence of religious divisions and the increasing use of religion in electoral mobilisation threatens to deepen the cleavages in society. While citizens have continued to enjoy rights, and seek justice from judiciary when denied these rights, the concentration of power in the executive’s hands and the weakening of the instruments of checks and balances on State power is a matter of concern. While India continues to remain united, the continued challenge to the integrity of the State, from Kashmir, parts of Northeast and the Maoist belt in central India poses a security threat. While democracy has only become stronger and more rooted, the temptation by citizens to adopt extra constitutional methods, or resort to the “grammar of anarchy”, in making a political point, or by the State to use excessive force, or resort to authoritarian measures, to quell the voices of citizens remains a concern. Still, 70 years later, despite the challenges, the big picture that emerges is that of success. India’s founders dreamed big by giving the country a remarkable Constitution. India’s politicians, public servants, civil society and citizens built the structures provided by the Constitution, and broadly have played by the rules of the game. What is needed now is a renewed pledge to abide by the values of the Constitution — of sovereignty resting with the people of India; of democracy; of justice, liberty, fraternity and equality; of secularism, coexistence and tolerance; and of the dignity of the individual. Read the full article