The Hindu Editorial Analysis
23 April 2021

1) The Chequered legacy of a Chief Justice of India

As the Supreme Court turns the page on the tenure of the outgoing CJI, it needs to reclaim its role as a judicial beacon

GS 2: Judiciary


Context:

  • The Supreme Court of India in the last five years during the tenure of the last four Chief Justices of India (CJIs), has seen an unprecedented fall — from being an independent custodian of justice, to becoming an instrumentality of the government.

  • After the tenure of former CJI Ranjan Gogoi, who oversaw the Ayodhya and Rafale verdicts, before retiring to join the Rajya Sabha, we thought the worst was behind us.

  • We hoped that his successor, CJI S.A. Bobde would lift the Court out of this abyss and at least restore its independence from the executive.

  • But, the nearly18 months of his tenure has exposed a deep malaise in every aspect of dispensation of justice;

    • From the administration of the Court;

    • In the allocation of cases and benches;

    • To presiding over matters related to the protection of civil liberties,

    • Securing the rights and the livelihood of the poor and marginalised;

    • In ensuring that the unconstitutional actions and policies of the executive are kept in check.

Momentous months

  • His tenure began in November 2019 with many important cases before him.

  • There were over 100 petitions challenging the dilution of Article 370 and the reorganisation of the State of Jammu and Kashmir (J&K) into Union Territories.

    • The cases challenging the cataclysmic changes to the status of J&K remained unheard during his entire tenure as did the cases challenging the CAA.  

  • Soon after he assumed office, the Citizenship (Amendment) Act was passed, which led to another spate of petitions challenging its constitutionality.

  • The main challenge to the electoral bonds and other changes to electoral funding, which have a fundamental bearing on our democracy, remained unheard.

    • Applications for the stay of bonds being issued before every election, were never listed for hearing, and were eventually dismissed on the ground that the bonds had been around for several years; therefore, there was no need to stay them.

  • Similarly, the main petition regarding the status of the Rohingya refugees and the protection to be accorded to them, remained unheard.

    • An application to prevent their detention and deportation, was disposed of by Chief Justice Bobde, in complete disregard of constitutional and international law norms, on the basis that their fleeing genocide in Myanmar did not concern the Court.

  • The Supreme Court, under his stewardship, remained shut for physical hearing much of the time, resulting in fewer than 25% cases being heard in a Court, already reeling under a backlog and pendency of cases.

Migrant labour exodus

  • During the nationwide lockdown last year, the country witnessed unprecedented suffering by migrant labour;

    • There was a mass exodus of them from the big cities, and they suffered a huge loss of livelihood and income.

    • Without any public transport, they were forced to walk hundreds of miles to reach their villages.

    • Their case for relief in terms of food, wages and transport was initially heard by the CJI’s Bench.

    • The CJI remarked infamously during one of the hearings, “If they are being provided meals, then why do they need money?”

    • It would be no exaggeration to say that the Court’s inhumanity and apathy towards the distress of the poor and marginalised reached its nadir during this time.

  • Far from being a custodian of citizens’ rights, CJI Bobde, while hearing the Kerala journalist Siddique Kappan’s habeas corpus petition (arrested while covering the infamous Hathras rape and murder case in Uttar Pradesh), noted that the Court had been discouraging people from approaching it under Article 32, Mr. Kappan’s petition remained pending with repeated adjournments.

  • In the farmers’ protest case, the CJI appointed a committee of people, whose political neutrality was suspect, to examine the issues and commence negotiations with the farmers.

    • These committee members had publicly supported the farm laws in the past.

Administrative role

  • Apart from his role as the master of the roster, the CJI also plays a pivotal role in judicial appointments.

    • Unfortunately, here too, he failed to carry the collegium with him, leading to no appointments to the Supreme Court during his tenure, and very few appointments even to the High Courts.

    • He did not even order the government to issue notifications for the appointment of judges where the collegium had unanimously reiterated its recommendations, despite the government procrastinating over them for long.

    • The law laid down by the Court says that these are binding on the government.

  • The Chief Justice of India also plays a critical role in dealing with complaints against judges.

    • During his tenure, the CJI received a serious complaint made by a Chief Minister of a State against one of the Court judges, with considerable documentary evidence of questionable land purchases.

    • For over six months, the people in the country were not informed how the complaint had been dealt with, and whether any in-house committee (as per the law) has been appointed to, who the members of the committee were, and what their report was.

  • The same lack of transparency was visible in another case, where he was chairman of a committee examining allegations of harassment made by a woman staffer of the Court against his predecessor.

    • His report, purporting to give a clean chit to his predecessor, was never allowed to see the light of day and not even provided to the complainant.

Green cause

  • The only positive intervention by CJI Bobde was his order in the West Bengal trees case, where he appointed an expert committee to examine the value of trees which are to be felled for any public project.

  • In all other issues, the CJI has only caused disappointment with his silence, letting the executive have its way and even making strong remarks on sensitive issues and subjects.

  • He has kept important matters pending, and has hardly intervened to provide any relief to the most marginalised or the weak in India.

  • As we bid farewell to Chief Justice of India Bobde, the Supreme Court must examine what has happened to what had once been called the most powerful court in the world and a beacon for many other courts across the world.

  • As the Supreme Court turns the page on his tenure, let us hope that in the coming years, it can rebuild its legacy by asserting its judicial independence from the government and once again reclaiming its constitutional role as a citadel that establishes India’s constitutional values, guards its democracy, and protects human rights and dignity.

 

 

 

2) A descent into disillusionment and chaos

In the second wave, administrative indolence, chaotic public communication and counter-intuitive policy stand out

GS 3: Health


Context:

  • The Prime Minister’s address to the nation on April 20, though fairly motivational, confounded the expectations of much of the nation’s commonality.

  • Apart from a coherent plea to States to avoid total lockdowns and a romantic COVID-19 situational briefing of sorts, much of it was optimistic yet stultifying rhetoric that could hardly have any influence on mass behaviour towards COVID-19.

Administrative fatigue

  • Medicine and social science are two essential pillars of public health.

    • Much to the detriment of public health, this has time and again resulted in a subconscious dismissal of social science-based approaches that hold the keys to the public health castle.

  • Strategies such as mass vaccination, which although of unrivalled significance have considerable near-term limitations.

  • The idea of limiting open-hours derives from the theoretical precept of rationing services to discourage over-consumption, much like waiting times.

  • But the same fosters over-crowding, non-compliance with COVID-19-appropriate behaviour by both shopkeepers and customers, and is practically counterproductive when an infectious pandemic is in question.

  • Similarly, it is possible to locate beneficiaries lined up outside some vaccination centres from midnight till noon for physical tokens, while the politically well-connected get their way within minutes.

  • All of these indicate that much like pandemic fatigue among the public, administrative and governance fatigue is real, and that the crucial lessons from the early days of the pandemic have been squandered rather than strengthened.

Poor messaging

  • Another example of administrative fatigue, resulting from a subconscious dismissal of behavioural approaches,

    • Is the poor risk communication and public messaging that has accompanied the second wave.

  • Health behaviours, once firmly embedded, are expected to be swiftly elicited on subsequent occasions.

  • The concept is much like immunological memory where the body exerts a stronger response to a disease agent upon the second or third infection.

  • Such embedded health behaviours in some East Asian countries have resulted in prompt and widespread public adoption of measures such as masking on the whiff of an infectious outbreak.

  • The same cannot be expected for India given our lesser exposure to infectious pandemics.

  • As is often humorously exclaimed, the worst way to calm someone down is by telling them to calm down.

  • Reducing the risk communication strategy to simple messages such as “please wear masks” is unlikely to work particularly in a setting of widespread pandemic fatigue, and where mixed signals are continuously disseminated by political representatives.

  • Altering health behaviour, in addition to altering physical and social contexts, involves skilful and emphatic messaging that incentivises adoption of the right behaviours.

  • Unfortunately, the public health messaging strategy during the second wave has been more generic, muffled, and far more equivocal than the first wave.

A perspective

  • An over-medicalised public health emergency is a disaster superimposed on another.

  • Further, there are non-negotiable aspects such as the lag between vaccination and protection, and the gargantuan challenge of vaccinating a large population as ours.

  • Overcoming our preoccupation with medical solutions and looking at behavioural approaches as more than mere rituals will be imperative to combat this second wave.