11 July 2020: The Hindu Editorial Analysis
1) Crime as punishment: On the killing of Vikas Dubey-
GS 2- Important aspects of governance, transparency and accountability
- The Uttar Pradesh Police’s account of the killing of Kanpur gangster Vikas Dubey on Friday, even if taken at face value, is a startling admission of serious ineptitude(lack of skill).
- The possibility that his death is officially sanctioned retribution(punishment) for the murder of 8 policemen who were part of the team that went to arrest him on July 3 is hard to dismiss out of hand.
- Without a doubt, Dubey’s death in an ‘exchange of fire’ while he was ‘trying to flee’ after the police vehicle in which he was being taken ‘met with an accident’ is also extremely convenient for many.
- It puts a lid (brake) on the tale of his violent rise to power and influence, which was nourished by a wider network of patrons, including some in the police force.
- A hardened criminal, who had 62 cases against him was supposedly being transported without handcuffs; he snatched weapons from those escorting him, according to the police version of the incident.
- Indeed, this is no more than a self-indictment (defending oneself) of the state police, whose conduct has raised far too many questions in the recent past.
- There is no good explanation for driving such a suspect through the night across more than 600 km from Ujjain in Madhya Pradesh where he was arrested on Thursday.
- The brutal last episode of Dubey’s serial crimes should be no defence if the shooting turns out to be an extra-judicial killing.
An extrajudicial killing (also known as extrajudicial execution) is the killing of a person by governmental authorities or individuals without the sanction of any judicial proceeding or legal process. Extrajudicial killings often target leading political, trade union, dissident, religious, and social figures.
FAIR AND TRANSPARENT TRIAL:
- Any demand of probity and accountability in police and military is often contested on the supposed ground that it emerges from a support for criminals, terrorists or enemies of the state by influential political and public figures.
- There is no question that crimes such as those Dubey was involved in must be met with exemplary punishment.
- The process of establishing guilt and executing punishment is not an incidental part of justice, but its integral soul.
- A fair and transparent trial cannot be dispensed with in order to satisfy cries for vengeance(revenge).
- Social sanction of instant justice by state agents might have leached into institutions that are mandated to enforce the rule of law.
- Last year, when the Cyberabad police shot dead four people accused in a case of gang rape and murder, people celebrated in the streets.
- The courts and the National Human Rights Commission have also shown a lenient approach in such cases.
- Goading(provoke) the police on to deliver instant justice, or even tolerating such behaviour, creates an atmosphere of impunity(defence) that could lead to murder of innocent people as happened with the custodial deaths in Tamil Nadu.
- Support for such killings by the police will not make a society more just. Mob justice is no justice at all.
- When law enforcers short-circuit due process, the damage to state institutions is severe and long-lasting.
- The state must get tough on crime, but the police should not be allowed to break the law.
2) Reform with caution: On criminal laws reform-
- Home Ministry has formed a ‘Committee for the Reform of Criminal Laws’.
- An apparent short time frame and limited scope for public consultation has caused considerable disquiet among jurists, lawyers and those concerned with the state of criminal justice in the country.
- Few would disagree with the idea that the current laws governing crime, investigation and trial require meaningful reform.
- There have been several attempts in recent decades to overhaul(repair) the body of criminal law.
- Indian Penal Code of 1860 vintage, the Code of Criminal Procedure that was rewritten in 1973, and the Indian Evidence Act that dates back to 1872 comprises criminal laws.
- However, comprehensive legal reform is something that requires careful consideration and a good deal of deliberation.
- One criticism against the latest Committee is that it has begun its work in the midst of a pandemic.
- This may not be the ideal time for wide consultations.
- Activists and lawyers functioning in the hinterland may be at a particular disadvantage in formulating their opinions.
- The panel’s mandate appears quite broad: “to recommend reforms in the criminal laws of the country in a principled, effective, and efficient manner which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual.”
- This is vague and open to multiple interpretations.
- It is also not clear why the Law Commission has not been vested(given) with this task.
Law Commission of India is an executive body established by an order of the Government of India. Its major function is to work for legal reform. Its membership primarily comprises legal experts, who are entrusted a mandate by the Government.
Justice Verma panel recommendations:
A three-member commission assigned to review laws for sexual crimes submitted its report to the government on Wednesday. The commission, headed by former Chief Justice of India, Justice JS Verma, has identified "failure of governance" as the root cause for sexual crime. It has criticised the government, the police and even the public for its apathy, and has recommended dramatic changes.
Justice V.S. Malimath Committee on reforms in the criminal justice-
- The lack of diversity in what is an all-male, Delhi-based committee has also been adversely commented upon.
- In 2003, the Justice V.S. Malimath Committee on reforms in the criminal justice system had come up with some far-reaching suggestions, some of which became part of changes in criminal law.
- However, it also attracted criticism over the suggestion that the standard of evidence be reduced from “beyond reasonable doubt” to “clear and convincing”.
- The Justice Verma panel came up with a comprehensive and progressive report on reforms needed in laws concerning crimes against women in 2013 in barely one month, but its speed was probably due to the limited mandate it had.
- If at all criminal law is to be reformed, there should be a genuine attempt to reach a wide consensus.
- On ways like to speed up trials, protect witnesses, address the travails(hardships) of victims, improve investigative mechanisms and, most importantly, eliminate torture- it needs consensus.
- An impression should not gain ground that wide-ranging changes are sought to be made within a short time frame and based on limited inputs from the public.
- Reform is best achieved through a cautious and inclusive approach.
- Criminal law reforms should not be made by quick-fire means or without wide consultations.
3) Do we need a fiscal council?
- The government needs to borrow and spend more now in order to support vulnerable households and engineer economic recovery.
- But that will mean a steep rise in debt which will jeopardise (harm) medium-term growth prospects, an issue prominently flagged by all the rating agencies in their recent evaluations.
- It is possibly the fear of market penalties that is holding the government back from opening the money spigots(tap).
ENFORCING FISCAL DISCIPLINE:
- Many economists have faulted the government’s fiscal stance, arguing that this is no time for restraint; the government should spend more to stimulate (push) the economy by borrowing as may be necessary.
- But at the same time come out with a credible plan for fiscal consolidation post-COVID-19 in order to retain market confidence.
- But will the market be persuaded(convinced) by the government’s assurance of future good conduct?
- Not necessarily, say the commentators.
- The government can signal its virtue by establishing some new institutional mechanism for enforcing fiscal discipline, such as for example a fiscal council.
- The suggestion of a fiscal council actually predates the current crisis.
- It was first recommended by the Thirteenth Finance Commission and was subsequently endorsed by the Fourteenth Finance Commission and then by the FRBM (Fiscal Responsibility and Budget Management) Review Committee headed by N.K. Singh.
PRESENT IN 50 COUNTRIES:
- According to the International Monetary Fund (IMF), about 50 countries around the world have established fiscal councils with varying degrees of success.
- Fiscal council will be a permanent agency with a mandate to independently assess the government’s fiscal plans and projections against parameters of macroeconomic sustainability, and put out its findings in the public domain.
- The expectation is that such an open scrutiny will keep the government on the straight and narrow path of fiscal virtue and hold it to account for any default.
- Do we really need a fiscal council? Sure, we do have a chronic problem of fiscal irresponsibility, but is a fiscal council the answer?
- Recall that back in 2003 when FRBM was enshrined into law, we thought of that as the magic cure for our fiscal ills.
- The FRBM enjoins(urges) the government to conform to pre-set fiscal targets, and in the event of failure to do so, to explain the reasons for deviation.
- The government is also required to submit to Parliament a ‘Fiscal Policy Strategy Statement’ (FPSS) to demonstrate the credibility of its fiscal stance.
- Yet, seldom have we heard an in-depth discussion in Parliament on the government’s fiscal stance; in fact the submission of the FPSS often passes off without even much notice.
- If the problem clearly is lack of demand for accountability, how will another instrumentality such as a fiscal council for supply of accountability be a solution?
- It can be argued that a fiscal council will in fact be a solution because it will give an independent and expert assessment of the government’s fiscal stance, and thereby aid an informed debate in Parliament.
- A fair point, but do we need an elaborate permanent body with an extensive mandate for this task?
THE COUNCIL’S MANDATE:
- As per that, the fiscal council’s mandate will include, but not be restricted to, making multi-year fiscal projections,
A) preparing fiscal sustainability analysis,
B) providing an independent assessment of the Central government’s fiscal performance and compliance with fiscal rules,
C) recommending suitable changes to fiscal strategy to ensure consistency of the annual financial statement and taking steps to improve quality of fiscal data,
D) producing an annual fiscal strategy report which will be released publicly.
- An institutional behemoth (huge) with such a wide job chart will likely add more to the noise than to the signal.
- For example, the fiscal council will give macroeconomic forecasts which the Finance Ministry is expected to use for the budget, and if the Ministry decides to differ from those estimates, it is required to explain why it has differed.
- As of now, both the Central Statistics Office (CSO) and the Reserve Bank of India (RBI) give forecasts of growth and other macroeconomic variables, as do a host of public, private and international agencies.
- Why should there be a presumption that the fiscal council’s forecasts are any more credible or robust than others?
- Why not leave it to the Finance Ministry to do its homework and defend its numbers rather than forcing it to privilege the estimates of one specific agency?
- Besides, forcing the Finance Ministry to use someone else’s estimates will dilute its accountability.
- If the estimates go awry (wrong), it will simply shift the blame to the fiscal council.
- Another argument made in support of a fiscal council is that in its role as a watchdog, it will prevent the government from gaming the fiscal rules through creative accounting.
- But there is already an institutional mechanism by way of the Comptroller and Auditor General (CAG) audit to check that.
- If that mechanism has lost its teeth, then fix that rather than create another costly bureaucratic structure.