05 March 2021: The Hindu Editorial Analysis
1) Not so stellar in protecting personal liberty.
The outcomes from the judiciary in the defence of liberty, free thought and speech seem to be far from routine.
GS-1: Social empowerment.
GS-4: Ethics and Human Interface: Essence, determinants and consequences of Ethics in-human actions; dimensions of ethics; ethics.
1. The different cases where judiciary grant bail, on charges of criminal defamation to journalist Priya Ramani. The second was Disha Ravi, a 22-year-old woman who was arrested in Bengaluru and taken to New Delhi on charges of sedition.
2. A Delhi court, in discharging her of the accusations, recognized that a woman’s right to dignity superseded any claims over reputation.
3. The court also held that a survivor of sexual harassment had the freedom to place her grievance at any point of time after the occurrence of the event and on any platform of her choice.
The Key takeaways from the verdict:
- Didn't “do'” anything: it drives the message home that you don't have to touch someone inappropriately to sexually harass them.
- The Victim had to prove her intention: that a woman who was sexually harassed had to prove her motives, that she was not guilty of defamation and was not making false allegations.
- The Women and the workplace: Now all workplaces have to have Prevention of Sexual Harassment at the Workplace (POSH) complaint cells but women are still wary for this very reason.
- The Women have a right to complain even after decades: The court says women have a right to speak about their experiences on any platform, even decades later.
- Not a man of stellar reputation: Court says “A woman cannot be punished “for raising voice against sex abuse on the pretext of criminal complaint of defamation.
Now for another ruling
1. Ms. Ramani spent months on end participating in a trial, not for being a perpetrator of any crime but for speaking out about sexual harassment at the workplace.
2. Ms. Ravi spent 10 days in custody on the basis of evidence that the court found, at best, “scanty and sketchy”
3. On February 25, the Allahabad High Court, in Aparna Purohit v. State of U.P., (Tandv movies Case) gave us a scantling of the disdain with which the higher judiciary views issues of personal liberty.
Unconstitutional, but upheld
1. The Constitution permits reasonable restrictions on free speech on a variety of stated grounds.
2. Determining what is reasonable and what falls within the bounds of those permitted limitations can sometimes be an exercise fraught with difficulty.
3. India’s Parliament has either chosen to allow colonial-era laws to do the government’s bidding or it has legislated new rules that do not merely err on the side of restraint as much as they treat the restriction as their chief goal and purpose.
4. The cases concerning Ms. Ramani, Ms. Ravi and Ms. Purohit each emanate out a law that is categorically unconstitutional, but that has nonetheless been upheld by the Supreme Court.
Tools of defamation, sedition:
1. It ought to be self-evident that the punishment, even the very idea of prosecution, for libellous speech is disproportionate to the offence. Criminal law does not exist to make prosecutable acts that are essentially private in nature.
2. By making ostensibly slanderous talk a punishable offence, the state imposes a chilling effect on all manners of legitimate speech.
3. It is for this reason that almost every democratic nation of the world has revoked laws criminalising defamation.
4. But in India. It remains a tool for the powerful and is routinely invoked not just by individuals and governments in positions of authority but also by corporations looking to protect their commercial interests.
India’s blasphemy laws:
1. Section 153A, which deals with speech that seeks to promote enmity between different communities, and Section 295A, which criminalises speech that outrages religious feelings, is also vestiges of colonialism.
2. Under the Section 499 of the Indian Penal Code (IPC) as whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation.
3. The law of criminal defamation is premised on a person’s right to a reputation. Making or publishing “any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person”, is criminal defamation.
4. Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Signals from the judiciary:
1. That the Supreme Court has allowed these provisions to remain on India’s books ought to tell us that its record in protecting personal liberty is acclaimed without reason.
2. In Arnab Goswami vs State of Maharashtra, The judgment noted: “Our courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens.
1. The uncertainty in Supreme Court judgment is coupled with the prevailing distrust which flows from the Supreme Court in the values of personal liberty, of free thought and expression, what we get is a complete erasure of the rule of law.
2. The accused in the defamation cases are relying on penal provisions under IPC and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, that supersedes the Vishakha Guidelines on sexual harassment need to address.
2) With Biden, India may need a new template.
Despite accumulated goodwill, New Delhi needs imaginative engagement to deal with the Democrat-controlled House.
GS-2: Effect of policies and politics of developed and developing countries on India’s interests, Indian Diaspora.
1. Indian-Americans are taking over the country, US President Joe Biden has said, referring to the high number of people from the community getting a place in his administration.
2. Despite accumulated goodwill from Indian side, India needs imaginative engagement to deal with the Democrat-controlled House. Because, India does not enjoy bipartisan full support in the “US Congress”.
Message by the India Caucus:
1. The new administration in the United States, of Joseph R. Biden, and the 117th U.S. Congress, two separate branches in the American system of governance, hit the road running with a sense of purpose to ‘heal’ the country and restore its leadership role in the world.
2. The first signal of a possible direction can be interpreted from the recent formal interaction that members of the India Caucus in the House of Representatives had with the Indian envoy in Washington DC.
3. A formal statement by Mr. Sherman on ongoing framer protest the group urged the Government of India to make sure that the norms of democracy are maintained and that protesters are allowed to protest in a peaceful manner with access to the Internet and journalists.
Indian community is a force:
1. Biden has appointed at least 55 Indian-Americans to key leadership positions in his administration ranging from his speechwriter to the NASA, to almost every wing of the government.
2. It is the immense contribution of the Indian-Americans, the second largest immigrant community with strength of four million plus (approximately 4.8 million) people.
3. The massive effort by this highly educated and economically strong community makes it count as one of the most influential groups in the U.S.
Divergence in the preferences of the Indian community:
1. over the past decade-and a-half, a number of Indian-Americans have found their way into various branches of the administration and the Congress.
2. Between 2000 and 2018, the Indian American population grew by nearly 150 percent, making it the second-largest immigrant group in America today.
3. The community’s elevated levels of educational attainment and household income render its members valuable campaign contributors and potential mobilizers.
4. Indian Americans do not consider U.S.-India relations to be one of the principal determinants of their vote choice in the election. Because, Kamala Harris has mobilized Indian Americans, especially Democrats.
Assessments and response:
1. These second-generation members of Indian-Americans have their own individual assessment of developments in India, making it tougher for India to put forward a convincing argument from its perspective to counter perceptions.
2. India, of course, has stepped up its outreach on the Hill and New Delhi enjoys an advantage to the extent that both Mr. Jaishankar and the current Foreign Secretary, Harsh Vardhan Shringla, served as Indian envoys in Washington DC. Both are well-versed with the way the city functions inside the Beltway.
3. Adding sinews to this effort is the pace of engagement by Indian missions. A leading Indian think-tank too opened its U.S. arm to supplement efforts in a city where the hiring of a professional lobby firm in Washington DC is well-accepted practice.
The structures of cooperation with USA:
1. India will hope that the Biden administration does not wholly jettison mechanisms (like the 2+2, Quadrilateral, or Quad-plus) that have proven to be useful during the Trump administration.
2. India might even seek new or revived dialogues on climate change, strategic technology, higher education, or economic ties, as well as membership of the India-led coalitions like the International Solar Alliance.
3. The current scenario challenge to translate the intent expressed at the last India-U.S. 2+2 meeting, in October 2019, of establishing an India-U.S.-Parliamentary Exchange for formal and reciprocal visits by parliamentarians.
A direction pointer
1. To establishing an India-U.S.-Parliamentary Exchange is because opinion articulated by lawmakers has an amplifier effect and at times determines the path for the administration.
2. The accumulated reservoir of goodwill by Indians should help in defining the future course of bilateral ties; but it would require imaginative engagement to deal with the Democrat-controlled House, making it easier for the new administration to work on its India-centric plans.
3. A test case waits in the form of CAATSA, or Countering America’s Adversaries through Sanctions Act, as India moves ahead to procure the Russian S-400 missile defence system.
1. India will also welcome a return by the United States to multilateralism, though it seeks reformed multilateralism. It will continue to be interested in working in issue-based coalitions with the United States and others, including in Asia and Europe.
2. in INDIA-USA relation, India to pick and choose according to where its interests and approaches align such as joining ones focused on regional security or critical technologies while staying out of trade coalitions.
3. There is scope for the two countries to work together, particularly in ensuring democratic resilience in the Indo-Pacific region and the resilience of the rules-based international order especially in “WHO, WTO and UN”.