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Admin 2020-02-08

08 Feb 2020: The Hindu Editorial Analysis

1) A weak rebuke: It’s unfortunate EC didn’t punish hate speech in Delhi campaign


  • CONTEXT: Ineffective IPC provisions encouraged the worthies like Parvesh Sahib Singh Varma to commit a repeat offence when he once again indulged in a vitriolic diatribe against the Delhi CM for which the EC indicted him a second time within a week.
  • BODY: Twelve days of campaigning for elections to the Delhi Assembly have come to an end
  • Most Indians were, no doubt, waiting for the culmination of this campaign in which the development debate was overshadowed by hate mongering and outpouring of communal vitriol. 
  • Shaheen Bagh remained the bone of contention, a protest site that incited many of our politicians to make sinister comments like “Desh ke gaddaron ko…”
  • There were references to “suicide bombers”, and the incumbent chief minister was accused of being a terrorist. 
  • Such language should not be used in private space, let alone in public forums.
  • EFFECTIVENESS OF THE EC? Offences mentioned above violate not only the MCC but also the Representation of People Act (1951) and Indian Penal Code, 1860.
  • Let’s first understand the Model Code of Conduct: It is a set of behavioural guidelines for political parties and candidates for the peaceful conduct of elections, to prevent hate speech, malpractices, corruption and misuse of government machinery by the ruling party. 
  • Since it is not an Act passed by Parliament, the Code is not judicially enforceable. 
  • The action against a violator usually takes the form of an advice, warning or censure. No punitive action can be taken. 
  • No wonder, many consider the Code as toothless. That, however, is not true. Its moral authority far outweighs its legal sanctity. 
  • Political leaders worth their salt are scared of inviting a notice for a violation, as it creates negative public opinion. Besides, unlike the legal processes, its impact is instant.

  • JUDICIAL ACCEPTANCE: The legality of the code has been judicially tested. Its first judicial acceptance came in 1997, when the Punjab and Haryana High Court gave the EC the power to enforce the code. 
  • “Such a code of conduct when it is seen that it does not violate any of the statutory provisions, can certainly be adopted by the Election Commission for the conduct of free and fair election, which should be pure as well,” the Court said. 
  • The SC has repeatedly held that this must be enforced strictly.
  • The very first section of the MCC lays down the following:
  • Part I (1): “ No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.” 
  • (2): “…Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”
  • PROVISIONS OF RPA: The Representation of the People Act (1951) categorically defines the above two as corrupt practices in Section 123 (3A) and Section 123 (4) respectively. 
  • With hate speech, the Act goes a step further and prescribes punitive measures in 
  • Section 125: “Promoting enmity between classes in connection with election: Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable, with imprisonment for a term which may extend to three years, or with fine, or with both.”
  • IPC: It is important to note that Section 153A of the Indian Penal Code has a similar provision: “Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. 
  • Whoever;
  • (a) by words …or otherwise, promotes or attempts to promote, on grounds of religion, race…caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious … groups or castes or communities, or 
  • (b) commits any act which is prejudicial to the maintenance of harmony between different religious … groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or 
  • (c) … whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,shall be punished with imprisonment which may extend to three years, or with fine, or with both.”
  • ACTIONS BY THE EC: Now that we are well-equipped with the provisions of the laws and the Model Code of Conduct, we must analyse the action taken by the Election Commission.
  • It must be appreciated that the EC was prompt in its action against the leaders accused of hate speech. 
  • While it instantly, suo moto, deprived the two leaders of their star campaigner status, it also punished them with a gag order, using the ultimate weapon provided by Article 324. 
  • Moreover, the Commission categorically noted that it “strongly condemned” the statements by the two leaders.
  • CONCLUSION: The EC flexing its muscle outside the so-called “toothless” MCC and invoking Article 324 is indeed a refreshing change. 
  • In earlier instances, it often had to let the culprits go with a mere “warning, caution or censure”. In its notice to BJP leader Anurag Thakur, the EC cited Sections 123 and 125 of the RP Act. 
  • What is baffling, however, is that if the Commission had found them guilty of offences deserving punishment, why did it stop short of filing FIRs?
  • Historically, the EC has always taken simultaneous action under the Model Code of Conduct and the other two provisions. 
  • While the MCC produces instant results, the penal provisions involve endless judicial processes. 
  • Not taking action under the IPC encouraged the worthies like Parvesh Sahib Singh Varma to commit a repeat offence of indulging in a vitriolic diatribe against the Delhi CM for which the EC indicted him a second time within a week. 
  • That such small-time leaders repeatedly defy the Commission should be a matter of concern. The answer also lies with the EC.

 

2) No Normalcy in J&K


  • CONTEXT: Continued detention of leaders, slapping of draconian law, pose serious questions about Centre’s policy and intent in J&K
  • J&K PSA, 1978: The draconian Jammu & Kashmir Public Safety Act, 1978 is a preventive detention law, used against those from whom the authorities fear a threat to “the security of the state or the maintenance of the public order”.
  • The Centre has acted unconscionably in extending the custody of two former chief ministers of Jammu & Kashmir and two other politicians of the former state under the Public Safety Act, as their continued detention under CrPC 107/151 was becoming untenable after the passage of six months. 
  • Those arrested under this law can be held for up to two years, need not be produced before a magistrate within 24 hours, cannot apply for bail in a criminal court, and cannot engage a lawyer to challenge the arrest. 
  • The government has not said what threat mainstream Kashmiri politicians, including former chief ministers Omar Abdullah and Mehbooba Mufti, pose to national security. 
  • Certainly, no such threat was perceived when Abdullah and his father, Farooq Abdullah, also a former chief minister and serving Lok Sabha member -he has now spent four months as a PSA prisoner -called on Prime Minister Narendra Modi on August 1, just two days before the government stripped J&K of its special status and bifurcated it into two UTs.
  • What is becoming increasingly clear, though, is that for all their claims that the August 5 decision is popular in J&K, Prime Minister Modi and his government are afraid to put this to a democratic test.
  • TRAVESTY OF DEMOCRACY: The Modi government’s “new Kashmir” does not appear to have space for established J&K politicians who could challenge its plans. 
  • With each passing day, the government lowers the bar of democratic conduct further by acting with impunity. 
  • Its actions in Kashmir belie the claim of “normalcy restored in the Valley” that ministers routinely parrot. 
  • Indeed, no place can be normal when its elected leaders are imprisoned only for opposing the government’s policies, and when its people do not have the means to access or disseminate information because of a communications blockade which has been relaxed in name only.
  • How long can the government continue with this? And what are the consequences of these actions? 
  • Whatever the PM may say about them now, mainstream political parties like Abdullah’s National Conference and Mufti’s People’s Democratic Party were the Centre’s allies in the difficult terrain that Kashmir continues to be. 
  • The government may have served narrow political considerations by removing them from the scene, but it is not serving India’s interests. 
  • Such actions erode the foundations of a federal democracy, and will leave long-lasting damage - if they have not done so already - that will be hard to repair. 
  • It is disquieting that there is no concerted voice of protest from other political parties for the unconditional release of all politicians who remain in detention in Kashmir.

 

3) On the high cost of raising trade walls


  • India’s international trade posture appeared to turn protectionist in the past week, with two indicators the government sent out. The first, which played out live on television was contained in the Union Budget announced by Finance Minister Nirmala Sitharaman on February 1. 
  • The other, that went virtually unnoticed, was that India declined to attend a meeting of trade negotiators in Bali (February 3-4) that was discussing the next step in the Association of Southeast Asian Nations (ASEAN)-led Regional Comprehensive Economic Partnership (RCEP) trade agreement.
  • Laying out the Budget for the year, Ms. Sitharaman made several references to the problems with free trade and preferential trade agreements (FTAs and PTAs), raised tariffs on the import of more than 50 items, and changed the Customs Act provisions substantially to penalise imports suspected to originate from third countries.
  • Ms. Sitharaman told Parliament: “It has been observed that imports under Free Trade Agreements (FTAs) are on the rise. Undue claims of FTA benefits have posed threat to domestic industry. Such imports require stringent checks,” adding that the government will ensure that all FTAs “are aligned to the conscious direction of our policy”.
  • While the motive may be to protect Indian markets from dumping - primarily by Chinese goods - the consequence of the changes will be to put Indian importers on notice and discourage imports in general. 
  • Describing a new chapter incorporated into the Act, the Finance Minister said the aim is to put “certain obligations on importers”, even as the government reserves the right to modify or cancel preferential tariffs and ban the import or export of any goods that it deems fit.
  • Rise in trade deficits: The government’s problem with FTAs was a key theme in its decision to walk out of the RCEP negotiations (of 16 countries) in November 2019, where Prime Minister Narendra Modi and members of his cabinet cited the rise in trade deficits with FTA partners. 
  • The government says it will now review all those agreements, in particular TAs signed with the 10-nation ASEAN grouping (FTA), Japan (Comprehensive Economic Partnership Agreement, or CEPA) and South Korea (CEPA), and wants to “correct asymmetry” in negotiations with new partners.
  • This is easier said than done. If India makes a complete break with RCEP, as its absence from the Bali meeting indicates it is determined to, negotiating the bilateral trade agreements (TAs) will not be a priority for the other countries until RCEP is done. 
  • The process of legal scrubbing is likely to take most of the year, and any talks with India will probably only follow that. It is also hard to see any of them being able to offer India a better deal bilaterally once they are bound into the multilateral RCEP agreement.
  • The case of the Comprehensive Economic Cooperation Agreement (CECA) being negotiated with Australia, which Mr. Modi hopes to give a boost to when Australian Prime Minister Scott Morrison visits, will be a difficult task, not the least due to its history. India and Australia began CECA talks in 2011. 
  • Mr. Modi and then-Australian Prime Minister Tony Abbott had even set a deadline of December 2015 to complete CECA. However, talks hit a dead end in September 2015. With the focus on RCEP, no progress has been made since then.
  • Tough road ahead: A similar scenario awaits the announcement of the India-United Kingdom FTA talks. British Prime Minister Boris Johnson is to visit Delhi in the next few months, while Mr. Modi heads to the U.K. in November for an environmental summit, and their bilateral bonhomie is expected to boost chances of an FTA post-Brexit. 
  • However, it is unlikely that the U.K. will actually be able to talk until next year, after terms for the U.K.’s full withdrawal from the European Union (EU) are completed.
  • For the same reason, India’s talks with the EU for a Bilateral Trade and Investment Agreement (BTIA) are unlikely to make much headway this year, although they will be in the spotlight when Mr. Modi travels to Brussels for the EU-India summit next month. 
  • There, both sides will have to decide how to revive from where they left off in 2013. Making the negotiations harder is the government’s decision to scrap all bilateral investment treaties with 57 countries including EU nations, and bringing in a new Bilateral Investment treaty (BIT) model in 2015. 
  • Only three countries: Kyrgyzstan, Belarus and most recently Brazil have agreed to sign a new investment treaty based on that model. Finally, there is the much anticipated resolution of U.S.-India trade issues ahead of the visit of U.S. President Donald Trump, expected in the last week of February that could also talks on an FTA. 
  • At present there have only been some “non-paper” talks on the issue, and given that the U.S. has expressed deep misgivings about India’s BIT model, these talks will also take several years to come to fruition.
  • No safety net: While the absence of a TA with any country does not mean that trade will not grow, other changes in the world trading order may become significant hindrances when added to this present scenario. 
  • The decline of multilateralism, accelerated by retrenchment of the U.S. and China’s intransigence have all meant the World Trade Organization (WTO) has lost steam as a world arbiter. This leaves states that are not part of arrangements without a safety net on dispute settlement mechanisms.
  • Second, the government has invoked the massive $57-billion trade deficit with China to explain protectionist measures, but it forgets its own trade surpluses with smaller economies, particularly in the neighbourhood, where Indian exports form more than 80% of total trade with Nepal, Bangladesh, Bhutan and Sri Lanka, respectively. 
  • Even with Pakistan, before India cancelled most favoured nation (MFN) status and Pakistan suspended all trade, in 2019, India’s exports stood at about $2.06 billion of a total of $2.55 billion.
  • Rise of regional agreements: Third, it is clear that most of the world is now divided into regional FTAs, including the North American Free Trade Agreement (NAFTA) for North America, the Southern Common Market (MERCOSUR for its Spanish initials) for South America. 
  • Also the EU, the Eurasian Economic Union (Russia and neighbours), the African Continental Free Trade Agreement (AfCFTA), the Gulf Cooperation Council (GCC) FTA in West Asia, and now the biggest of them all, RCEP, which minus India, represents a third of the world’s population and just under a third of its GDP.
  • With the door to RCEP all but closed, and the South Asian Association for Regional Cooperation (SAARC) virtually abandoned, India is not a part of any regional FTA. Finally, the trend across the world does not favour trade in services the way it does in goods, as most countries have turned migration-averse. 
  • India’s strength in the services sector and its demand for more mobility for Indian employees, is thus becoming another sticky point in FTA negotiations. The debate over trade is as much about India’s leadership ambitions in the world, and the factors that could inhibit its rise. 
  • It would be hard to argue that India can rise in Asia without closer trade links with the East or the backing of South Asia. India’s demographic might is certainly attractive for international investors, but only if that vast market has purchasing power and is not riven by social unrest and instability. 
  • Historically, the decline of colonial powers and more ancient empires can be traced to times when they turned inward and disengaged from foreign trade. It flows logically that in the modern, economically interconnected and technologically inseparable world, India’s global rise cannot but be accompanied by an open mind on trade as well.

 

4) On Upholding the fairness of the sentencing process


  • Mukesh Kumar Singh, Pawan Kumar Gupta, Akshay Kumar Singh and Vinay Kumar Sharma have been given seven days to exercise all their legal rights, after which they will, in all probability, be hanged to death for the rape and murder of a young woman in Delhi in December 2012. 
  • The trial court has also refused to permit their execution before the exhaustion of their legal remedies, in light of the order of the Delhi High Court. Since the incident, the case has received great media attention. 
  • The subject of rape has since become a matter of national importance; often there are protests with demands for the perpetrators to be hanged. Public anger around the Delhi incident led to the national belief that the death penalty was the only appropriate outcome.
  • Fair trial rights: While public sentiment remains unchanged, it is important to realise that judicial processes demand dispassionate fairness that gives due regard to substantive requirements of sentencing. Failure to meet these demands raises serious concerns about fair trial rights of the accused, which is as important during sentencing as it is at conviction. 
  • This article discusses the manner in which public opinion and “society’s cry for justice” have played a huge role in the sentencing process at the trial as well as appellate levels of the judiciary in this case, and the implications of this on the fair trial rights of the convicts.
  • A pivotal case and framework: A Constitution Bench of the Supreme Court in Bachan Singh v. State of Punjab (1980) laid down the sentencing framework in capital cases, requiring sentencing courts to consider the aggravating and mitigating circumstances of the offence and the offender when deciding the question of punishment. 
  • Courts also have to discharge the burden of meaningfully considering whether the alternative option of life imprisonment has been unquestionably foreclosed. The death sentence can only be imposed in exceptional cases involving extreme culpability, and such exceptionalism cannot solely be rooted in the brutality of the crime.
  • The manner of imposition of death sentences by courts at all levels in this case sits uncomfortably with the basic tenet of Bachan Singh. These decisions do not meaningfully engage with the mitigating circumstances of the convicts leave alone fulfilling the obligation of unquestionably foreclosing the option of life imprisonment.
  • The sentencing orders of both the trial court and the High Court not only summarily dismissed mitigating factors on the basis of precedents but also went on to explain why any punishment lesser than the death penalty would not meet the demands of “justice”. 
  • The trial court commented upon the “extreme mental perversion of the accused”, which was “not worthy of human condonation” and also reiterated elements of the crime to highlight their “beastly behaviour”. 
  • The High Court elaborately discussed the exceptional nature of this case given the brutality involved to conclude that expecting society to demand anything other than the death penalty for the convicts would be “unnatural and ludicrous”. 
  • A plain reading of the sentencing orders makes it very clear that the public clamour for “hanging the rapists” made its way into the judicial decision-making. Irrespective of the brutal nature of the crime, the circumstances of the convicts are crucial to the sentencing exercise and have to inform the punitive outcome. 
  • Recognising these deficiencies in the sentencing hearings by lower courts, the Supreme Court took it upon itself to appreciate mitigating evidence. The Court allowed defence counsels access to the convicts and directed the defence counsel to file “necessary separate affidavits and documents on mitigating circumstances”.
  • While this is noteworthy, the decision to itself hear on the question of sentence and not send the case back to the trial court for a fresh sentencing hearing took away the right of the convicts to be heard on the issue of sentence by courts at three different levels. 
  • The evidence on mitigation that was presented before the Court in the form of affidavits included material on the socio-economic circumstances of the convicts, their family background and some information on their previous occupation.
  • The uncanny similarity between the mitigation affidavits of the defendants is itself a matter of concern, as it does not meaningfully present individual circumstances of the convicts, raising questions about the quality of legal representation. However, of graver concern is the manner in which the court dismissed these circumstances as irrelevant, given the circumstances of the crime in the case.
  • Issue of life imprisonment: Confirming the death sentences for all, two concurring opinions remarked that the crime was bound to “shock the collective conscience” and any punishment lesser than the death penalty would “shake the confidence of the public” in the criminal justice system. 
  • After an unreasoned dismissal of individual circumstances of the convicts, the Supreme Court also failed to sufficiently answer why life imprisonment was unquestionably foreclosed. The Court failed to discharge any of these burdens.
  • At its core, imposition of death sentence to satisfy “collective conscience” is vengeance couched as retributive justice, captured by the phrase “an eye for an eye”. Modern penal systems consider this an outmoded concept, and even Bachan Singh had observed that retributive justice means punishment based on blameworthiness of the convict, and cannot be equated to “vindictiveness”. 
  • The sentencing requirements under the law do not have a place for bloodlust. However, the judgments in this case indicate a strong influence of collective conscience on the outcome. In fact, the Supreme Court’s approach suggests that society’s cry for the death penalty justifies the imposition of the death penalty, without adequately dealing with the question of life imprisonment.
  • The execution of the four convicts after exhaustion of their legal remedies may give their case a semblance of due process. However, concerns about the fairness of the sentencing process remain unanswered. 
  • While the public has very little patience to appreciate such nuances of the law, courts are duty-bound to maintain a high degree of fidelity to these processes. This should hold true especially in a case such as this which has seen loud and repeated calls for “hanging the rapists”.

 

5) On invocation of PSA against Omar Abdullah and Mehbooba Mufti: Extended folly


  • Six months after the BJP government at the Centre revoked the special constitutional status of Jammu and Kashmir and reduced it to two Union Territories, several senior leaders of the erstwhile State continue to be in detention. 
  • On Thursday, the controversial Public Safety Act (PSA) was invoked against former Chief Ministers Omar Abdullah and Mehbooba Mufti, among others. They were in preventive detention without charges until then. The 83-year-old Farooq Abdullah, another former CM, had earlier been detained under the PSA, and he remains in detention. 
  • There is no clarity regarding the number of prisoners or the future course for J&K, despite the elaborate rhetoric from Prime Minister Narendra Modi in Parliament on Thursday on the subject. 
  • With the dilution of Article 370 that accorded special status to J&K in August last year, the region has now been fully integrated with the rest of the country, the Prime Minister claimed. 
  • Indeed, the malevolent instruments of power deployed in J&K have since then dangerously spread to other parts - the crackdown on legitimate political activities, the vilification of leaders critical of the government as anti-India, and high-handed policing that is not merely condoned but glorified. 
  • The PM defended the indefinite and arbitrary detention of people as essential, and accused the former CMs of making “unacceptable” statements.
  • The Jammu & Kashmir Public Safety Act: If the executive were to draw boundaries on what statements are ‘acceptable’ and arrogate to itself the authority to punish unacceptable ones, it would be dangerous for a constitutional democracy. 
  • The Supreme Court had in January chided the government for the indefinite restriction on Internet in J&K, following which services have been partially restored. The Court cited the constitutional guarantee of freedom of speech, and also criticised the frequent and widespread use of Section 144 by governments. 
  • While the Court order was rousing in its tone, it did little to restrain the government. The changes to Article 370 and the manner in which they were effected, are under the consideration of the top court, which has not shown the sense of urgency these questions deserve. 
  • Though the BJP has always had an ideologically deterministic approach towards J&K, its policy has been nothing more than improvisation. At least at this late hour, the Centre must make an honest approach to restart a political process in the Valley. 
  • Indiscreet moves such as attempts to graft an inorganic layer of leaders into Valley politics are destined to fail. With all their follies, regional outfits and their leaders remain India’s best bet in J&K.
  • Their continuing detention betrays a perturbing lack of awareness of this basic fact in decision-making in New Delhi. Detention of former CMs under Public Safety Act will only delay the return of normalcy in J&K.