1) Drastic, but necessary: On Supreme Court stripping Manipur Minister of his office
Speakers must realise that deliberate inaction on defection matters is no more an option.
The Supreme Court’s order stripping a Manipur Minister of his office and barring him from entering the State Assembly may appear drastic and unusual, but is quite a reasonable and necessary course of action. T. Shyamkumar was elected as a Congress candidate, but defected to the BJP to join the Biren Singh Cabinet.
In a landmark judgment in January, which put an end to the deliberate inaction of Presiding Officers on petitions for disqualifying defectors, a Bench headed by Justice Rohinton F. Nariman had ruled that courts have the power to fix a time-frame for Speakers to dispose of petitions under the anti-defection law.
In the Manipur case, the court had given a reasonable period of four weeks — the defection complaint is pending since 2017 — but the Speaker failed to comply with it. On March 4, he had promised a decision within 10 days, but on March 18, he again sought time.
It is in this background that the court invoked its extraordinary powers under Article 142 of the Constitution to take the sort of measures that would kick in if the defector concerned had been disqualified. The order is interim in nature, and the next hearing is on March 30.
This means that the Speaker can still decide the matter, but a strong message has been sent out that courts will no more aid them in their attempts to protect defectors from the consequences of their floor-crossing.
The possible objections to the order keeping the Minister out are two-fold: that it goes beyond the court’s power of judicial review, and that any intervention in a matter under the Tenth Schedule of the Constitution (the anti-defection law) can be made only after the Speaker’s final decision.
However, it ought to be borne in mind that it was out of respect for the Speaker’s powers that the court refrained from deciding the matter itself, though there was ample evidence that the Speaker had failed to discharge his duty.
His obvious reluctance to decide the matter even within an extended deadline necessitated the latest course of action. In any case, as pointed out in the January verdict, a 2007 precedent (Rajendra Singh Rana) is available to show that ‘failure to exercise jurisdiction’ is a stage at which the court can intervene.
The order is a natural follow-on measure after the earlier decision opened a window for judicial intervention whenever Speakers refuse to act on legitimate complaints that some members had incurred disqualification.
It is quite disappointing that the Manipur Speaker did not meet the court’s deadline even after it was made clear that inaction is no more a legal option for him.
This only underscores the importance of the other limb of the court’s earlier judgment recommending that Parliament consider creating a new mechanism to replace the ‘Speaker’ as the adjudicating authority under the Tenth Schedule.
2) Giving Human Rights Commissions more teeth
The Madras High Court is to decide on whether the recommendations made by such panels are binding upon the state.
In 1993, the Indian Parliament enacted the Protection of Human Rights Act. The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution.
To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States. The National and State Human Rights Commissions are examples of what we now call “fourth branch institutions.”
According to the classical account, democracy is sustained through a distribution of power between three “branches” — the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others.
However, the complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight.
Some of these bodies are constitutional bodies — established by the Constitution itself. These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General.
Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.
In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions has come under scrutiny and criticism. There have been the usual critiques of the politicisation of autonomous bodies, and selectiveness.
Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.
Pending case: In this context, a pending case before the High Court of Madras has assumed great significance. A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.
Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative.
While conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on.
These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.
The controversy before the Madras High Court stems from the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated.
Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps. The key question revolves around the meaning of the word “recommend.”
The Full Bench of the Madras High Court is hearing the case because different, smaller benches, have come to opposite conclusions about how to understand the word “recommend” in the context of the Protection of Human Rights Act.
According to one set of judgments, this word needs to be taken in its ordinary sense. To “recommend” means to “put forward” or to “suggest” something or someone as being suitable for some purpose. Ordinarily, a mere “suggestion” is not binding.
Furthermore, Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission”, within a period of one month.
The argument, therefore, is that this is the only obligation upon the government. If indeed the Act intended to make the recommendations of the Commission binding upon the government, it would have said so.
It would not simply have required the government to communicate what action it intended to take to the Commission (presumably, a category that includes “no action” as well). While intuitively plausible, I suggest that this view needs to be rejected, for many reasons.
The first is that there is often a gap between the ordinary meanings of words, and the meanings that they have within legal frameworks. Legal meaning is a function of context, and often, the purpose of the statute within which a word occurs has a strong influence on how it is to be understood.
For example, the Supreme Court has held, in the past, that the overriding imperative of maintaining judicial independence mandates that “consultation” with the Chief Justice for judicial appointments (as set out under the Constitution) be read as “concurrence” of the Chief Justice (this is the basis for the collegium system).
Recently, while interpreting the Land Acquisition Act, the apex court held that the word “and” in a provision had to be construed as “or”.
Constitutional commitment: Of course, there needs to be good reason for interpretations of this kind. This brings us to the purpose of the Human Rights Act, and the importance of fourth branch institutions. As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights.
To fulfil this purpose, the Act creates an institutional infrastructure, via the Human Rights Commissions. The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights.
It stands to reason that if the state was left free to obey or disobey the findings of the Commission, this constitutional role would be effectively pointless, as whatever the Human Rights Commission did.
The final judgment call on whether or not to comply with its commitments under the Constitution would be left to the state authorities (effectively, the state judging itself). This, it is clear, would defeat the entire purpose of the Act.
Indeed, in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity. For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation.
The various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so.
It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role that fourth branch institutions are expected to play in the constitutional scheme is significant.
And lastly, as pointed out above, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings. This provides strong reasons for its findings to be treated — at the very least — as quasi-judicial, and binding upon the state (unless challenged).
Indeed, very recently, the Supreme Court held as much in the context of “opinions” rendered by the Foreigners Tribunals, using very similar logic to say that these “opinions” were binding.
In sum, the crucial role played by a Human Rights Commission — and the requirement of state accountability in a democracy committed to a ‘culture of justification’ — strongly indicates that the Commission’s recommendations should be binding upon the state. Which way the Madras High Court holds will have a crucial impact upon the future of human rights protection in India.
3) COVID-19: What nature seems to be telling us
It is reminding us that we need to acknowledge, with humility, our quintessential equality and interdependence.
The outbreak of COVID-19 has created an unprecedented situation around the world. Humankind is no stranger to calamitous outbreaks of diseases. However, this is the first viral outbreak of this nature and scale in our lifetime.
Today, my thoughts are with all those battling the virus, with the families of all the victims around the world, and also with the doctors, paramedics and health officials and all others who have put their lives at risk for the rest of us.
I commend people for their mature response in the face of the crisis. Their support is helping all institutions work in a coordinated manner to fight the outbreak. Our healthcare system has shown great alacrity and competence in meeting the extraordinary and evolving challenge.
Our leadership and administration have proved their mettle in these testing times. I believe that together we will weather the storm. I also commend the Prime Minister, Narendra Modi, for taking pre-emptive measures in right earnest to contain the pandemic at the very beginning and reaching out to our neighbours in SAARC to launch joint efforts to check its spread in the neighbourhood.
Even the World Health Organization (WHO) has acknowledged India’s efforts as worthy of emulation for the rest of the world.
Quarantining oneself: The outbreak has forced us to keep a respectful distance from others. This isolation, self-imposed or medically mandated, can be taken as an ideal opportunity to ponder about our journey so far and the future path.
As we are passing through a tough phase, let us turn this challenge into an opportunity and try to decipher what nature has been telling us through this crisis. The messages are many, but for the purpose of brevity I will dwell upon a few here.
We all know that hygiene is the first and obvious lesson. Precaution is the only cure for this new strain of coronavirus. As precaution, what doctors advise is basic hygiene, apart from social distancing.
Sanitation and cleanliness are among the humblest of the civic virtues, and it is easy to underestimate their significance. It needed a Mahatma to attach the utmost priority to them.
In South Africa and in India, his historic campaigns always began with or ran parallel to the question of sanitation and hygiene. In 1896, Gandhiji was visiting India, and plague broke out in Bombay.
He offered his services to the State, and the offer was accepted. As he was in Rajkot, he volunteered there. Do you know what he did as a volunteer? He inspected latrines and exhorted people to pay attention to cleanliness.
We need to imbibe all his lessons in our daily life, and in this year of his 151th birth anniversary we may begin by rededicating ourselves to the cause of personal and social hygiene. The nationwide ‘Swachh Bharat Abhiyan’ (Mission Clean India) is a precursor to this great social awakening.
Respect for nature may be the next lesson intended for us. Homo Sapiens is the only organism that has overpowered all other animals, taken control of the whole planet, and even set foot on the moon. Now it stands humbled by a microorganism.
We would do well to keep in mind the fact that at the end of the day we are merely biological organisms, dependent on other organisms for survival. Humankind’s craving to control nature and exploit all its resources for profit can be wiped out in a stroke by an organism we cannot even see with the naked eye.
Let us remind ourselves that our ancestors saw nature as mother, and asked us to respect it. At some point in history, we forgot ancient wisdom. When pandemics and abnormal weather phenomena are becoming the norm, it is time to pause and wonder where we lost the way, and how we can still make a comeback.
The whole world is a family: Equality may be a factor less apparent, but nature tells us that we are all equal. This new virus strikes beyond man-made distinctions of religion, race and region.
The world has been busy drawing distinctions and waging wars over ‘us vs. them’. But we suddenly realise that in the face of a grave mortal threat like the present one, we have but one identity — we are human beings.
Interdependence is also something we tend to overlook in normal times. In my speeches, I have often referred to the Sanskrit dictum, “Vasudhaiva Kutumbakam”, which means the whole world is but a family. Today, it turns out to be truer than ever before.
We realise how deeply each one of us is connected with everybody else. We are as safe as we take care of the safety of others, not only of human beings but also of plants and animals. Faced with an extraordinary crisis, most people tend to be selfish, but this is a crisis that teaches us to think equally of others.
Though voluntary services through social mobilisation are not encouraged due to the highly contagious nature of the disease, there are many ways in which people can help contain and mitigate the viral spread.
Every citizen can contribute towards raising awareness and equally by refraining from spreading panic, taking prudent precautions advised by the government. Those who can should also share resources, especially with less resourceful neighbours, and senior citizens who are vulnerable to the disease.
The coronavirus challenge underscores the necessity for “action in absence of crisis”. Nature is reminding us to acknowledge, with humility, our quintessential equality and interdependence.
It is a lesson — imparted at a heavy price — that will come handy in mitigating global challenges like climate change as well as in building a better, common future. In the meantime, I join you in reaffirming our resolve to come out of the present crisis at the earliest, stronger than ever as a nation.