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24 Jan 2020: The Hindu Editorial Analysis

1) On Centre’s plea on death row convicts: Needless impatience

  • The Centre’s application in the Supreme Court for additional guidelines regarding the execution of condemned prisoners betrays a needless impatience to hang the four convicts facing the gallows for the rape and murder of ‘Nirbhaya’ in 2012. 
  • The Ministry of Home Affairs essentially seeks the incorporation of measures aimed at reducing the scope for death row convicts to adopt dilatory tactics. Even though there may be some evidence to believe that convicts tend to file review petitions, mercy petitions and curative petitions in such a way that their execution is indefinitely delayed. 
  • It is difficult to attribute their conduct to the supposedly “accused-centric” nature of the guidelines laid down by the Supreme Court in Shatrughan Chauhan (2014). These guidelines were undoubtedly aimed at protecting the constitutional rights of prisoners in the context of a sound body of jurisprudence that maintains that such rights extend right up to the moment of their execution. 
  • The court was anxious about enforcing their right to be informed about the scope for filing petitions for clemency, for being given legal assistance in drafting them, and for exploring judicial remedies even after their appeals for mercy are rejected. 
  • Further, the 14-day time lag between the closure of the clemency route and their hanging is aimed at preventing secret executions. The court was concerned about the right of the convicts’ family members to be informed, as well as the time needed by the prisoners for settling their affairs and preparing themselves mentally.
  • It is strange that the government wants the Supreme Court to frame a rule imposing a seven-day limit on the time that convicts have to file a mercy petition after a death warrant is issued. And that courts, governments and prison authorities should all be mandated to issue death warrants within seven days of the rejection of mercy petitions and to carry out the sentence within seven days thereafter. 
  • To believe that these are matters that contribute to substantive delay in carrying out death sentences is misconceived. Nothing prevents the government from introducing rules to address such situations. 
  • On the need for a time limit for filing curative petitions, the government is right in believing that the absence of such a stipulation gives scope for convicts in the same case to take turns to file such petitions. However, there is no sign that the apex court delays disposal of curative petitions. 
  • If and when one is filed, it results in no more than a few days’ delay. In a country that unfortunately retains the death penalty, there is no excuse for delaying the disposal of any petition, either in court, or before constitutional functionaries. 
  • Nor is there any need to expedite executions by revisiting sound guidelines. As the death penalty is limited to the “rarest of rare” cases, nothing is lost if those facing execution are allowed to exhaust all possible remedies. 


2) On Wuhan lockdown: Unprecedented step

  • In a bid to curb the spread of the novel coronavirus that emerged in the city of Wuhan in Hubei Province in early December last year, China took a drastic and unprecedented step this week to shut down the city, thus preventing its 11 million inhabitants from leaving. 
  • All modes of transport have been suspended to prevent residents from exiting the city. Authorities also planned to suspend public transport services in Huanggang, a city of seven million; shut rail stations in Ezhou; and impose travel restrictions in Chibi. 
  • These moves come in the wake of an increasing number of people getting infected and even dying. As on January 23, the number of infected people in China stood at 571 and deaths at 17. 
  • Wuhan, the hotspot of the disease outbreak, has reported nearly 80% of all cases and all the 17 deaths. Further, the virus has spread to 24 provinces within the country and outside as well - cases have been reported in Thailand and Japan, South Korea, Taiwan, U.S., Hong Kong, Macau, Vietnam, and Singapore. 
  • That the virus has already acquired the ability to spread from one person to another has been confirmed by the World Health Organization. Apart from people in close contact with affected individuals, 16 health-care workers have been infected. 
  • The WHO now sees possible evidence of sustained transmission — the ability of the virus to spread beyond just clusters of patients. The decision to enforce shutdowns came on a day when WHO’s Emergency Committee was deliberating on whether the coronavirus outbreak should be declared a “public health emergency of international concern”. 
  • With a split verdict and not enough information available to make a decision on Wednesday, the emergency committee reconvened on Thursday. The WHO Director-General took note of China’s decision and said that the travel ban is a reflection of the significant measures taken by China to minimise the spread of the virus. 
  • Even the chair of the committee said the travel ban is an “important information and will certainly be useful for the reflection of the members of the committee”. These observations run counter to the stand the WHO has always taken even when it announces public health emergency. 
  • While declaring the Ebola virus disease outbreak in the Democratic Republic of the Congo as a public health emergency last year, the WHO had stated unequivocally that it is “essential to avoid the punitive economic consequences of travel and trade restrictions on affected communities”. 
  • That said, even if it limits the spread outside these cities, shutdowns cannot prevent human-to-human transmission within the cities. Shutting down entire cities go beyond the normal practice of quarantining infected people and might backfire.


3) SC Order On Kashmir Curbs

  • CONTEXT: The Supreme Court judgment on the communications lockdown in Kashmir will be remembered for many things.
  • It will be remembered for being delivered during the longest internet shutdown in any democratic country.
  • It will be remembered for the first apex judicial verdict on the constitutionality of internet shutdowns in a country that occupies the top global spot on the issue, and has more internet shutdowns than the next nine countries combined.
  • It will be remembered, with some disappointment, for laying down a set of detailed constitutional principles, but refraining from applying them to the case before it, and thus, effectively, enabling the shutdown to continue, at least for the foreseeable future.


  • CRITICISM: But more than any of that, the case deserves to be remembered for the kinds of arguments the government, and its lawyers, made before the Supreme Court.
  • From August 5, the day of the communications lockdown and the imposition of Section 144 of the CrPC in Jammu and Kashmir to the present day, the government has not even made public the orders that constitute the legal bases of the lockdown.
  • In other words, the government took away the fundamental rights of seven million people without even the courtesy of informing them why it was doing so or enabling them to challenge its decision in court.


  • GOVT'S ARGUMENTS: The government then argued that it did not need to do so because the very fact of publishing the orders would jeopardise “national security”.
  • The government’s second argument was even more insidious and dangerous. Citing cross-border terrorism in Kashmir, it effectively argued that it was accountable to no one as long as it invoked the two magic words — “national security”.


  • CRITICAL QUESTIONS: Why had the internet shutdown been imposed upon an entire people? Do internet shutdowns actually help in containing rumour mongering and stopping violence? Research shows they do not.
  • If the issue was the use of the internet to “radicalise” people, could there not have been more targeted and narrower ways to accomplish the goal, such as a selective blocking of websites?
  • Could the government not achieve through its surveillance and intelligence network what it was trying to achieve by cutting off the rights of seven million people?
  • Were the damages of the internet shutdown — damages marked by extraordinary financial loss, loss of effective expression, and granting a shield for state impunity — justified?
  • According to the state none of these questions could be even asked, let alone answered, because all this was in the domain of “national security”.


  • WHIMSICAL USE OF NATIONAL SECURITY: “National security” thus became a shibboleth that the government, and its lawyers, used for denying to show the legal basis of its actions, and then to deny justifying them at all.
  • Perhaps not since Attorney General Niren De stood up in 1976 and argued that the Emergency allowed the police to shoot anyone on sight, had such a claim for naked, untrammeled executive supremacy been advanced before the Supreme Court.
  • And in 1976, at least, there existed the formal declaration of an Emergency, and the formal suspension of fundamental rights.
  • Here, the state wanted to universalise the state of Emergency:
  • Any invocation of the words “national security” would be treated as conclusive proof of the existence of an Emergency, and a justification for granting the state near-total impunity.


  • REJECTION OF ARGUMENTS: The acceptance of these arguments would have taken us down a dark path indeed.
  • And it was therefore fortunate that in the judgment, both the arguments made by the state’s lawyers were roundly rejected.
  •  On the first count, the Court held that the basic principles of legality and the rule of law required that the shutdown orders be published and made available to the people so that they could know the reason why their rights were being restricted, and to challenge them if they so desired.
  • If the government wanted to withhold or redact the orders, or any part of them, it would have to show in each individual case why that was necessary.
  • The Court’s second holding was even more important. It noted that at all times when the state sought to restrict individual rights, the principle of proportionality would apply.
  • Proportionality is crucial, because it does not content itself merely by asking whether the state is pursuing a valid goal in its crackdown upon rights. Proportionality also queries the means by which the state has done so. And if the means are excessive, disproportionate, irrational, or otherwise unconstitutional, state action is struck down.
  • For example, one of the important limbs of the proportionality test is whether the state has selected the “least restrictive” or “least intrusive” method in order to achieve its goal.
  • This limb is based upon the idea that even when it wants to go after terrorists or maintain law and order, a democratic state must at all times respect individual rights to the maximum possible degree because the means matter as much as the goal, and the rights of the individual are not so fragile that they are simply effaced in the larger “national interest”.
  • The proportionality test, thus, would necessarily require the state to come to the Court and explain itself.
  • The state would have to justify why it had taken the steps it had, whether it had considered taking less restrictive steps, and, why less restrictive steps wouldn’t work. And this is exactly how it should be.


  • ORDER SERVING AS A RELIEF: The Supreme Court’s judgment, thus, is an important one, even though it failed to grant relief to the people whose rights were before it — the Kashmiris — who have now been deprived of the internet for more than five months.
  • SC order on Kashmir curbs rejected govt’s attempt to gain judicial sanction of Emergency-style powers
  • It is important because the strong invocation of the principle of proportionality can be used as a platform for challenging internet bans across the country; but also because the government’s attempt to gain judicial sanction of Emergency-style powers was roundly rejected, for now.


4) Focus On Farmers

  • CONTEXT: Government must engage in a collaborative effort with farmer groups in order to abate farmers distress who are having a tough time due to slump in the consumer demand.


  • STATE OF THE ECONOMY: Those in power may not yet be accepting blame for the barrage of negative news on the state of the economy, but cracks are appearing in the facade.
  • In such tumultuous times, the finance minister began the pre-budget ritual of consultations. Having inherited a mess, she faces the challenge of very limited latitude for budgetary allocations.
  • Her task is compounded by a bureaucratic decision-making process that is incapable of factoring the imponderabilia of actual livelihoods — one that does not even properly enumerate those committing suicide.


  • LACK OF DECION MAKING: The financialisation of policy-making has set us on an unforgiving trajectory where the corporate sector has wrung out a commitment from the government of spending Rs 102 lakh crore on infrastructure projects.
  • It would have been wiser to prioritise investments in human capital.
  • With around one per cent of this spend, the government could have filled all the vacancies and upgraded the ability of agriculture researchers, farm extension workers, teachers, doctors and similar professionals across India.
  • There’s a lot that those in power don’t know, and they don’t know that they don’t know.
  • This has culminated in a supply-side response to a demand slump, predicated on cutting corporate taxes instead of stimulating consumer demand by raising spending under MGNREGA or a one-time higher PM-Kisan dole out.


  • OPTIONS: Since, it’s equally important to augment government revenues, a beginning can be made by scrapping schemes such as the Pradhan Mantri Fasal Bima Yojna and saving over Rs 20,000 crore annually.
  • The government would be better advised to go back to the drawing board in consultation with farmers.
  • Similarly, alcohol must also be brought under the ambit of GST at the highest tax slab. After states are compensated for forgoing their alcohol revenues, the central pool will benefit by an additional Rs 30,000 crore.
  • It’s also time to impose a tax on digital services and e-commerce companies rather than reduce PDS allocations to rein in the ballooning deficit as proposed by some economists.


  • INNOVATIVE APPROACHES TO POLICY-MAKING: Changed circumstances and new understanding requires innovative approaches to policy-making.
  • The government must finance a long-term study for developing a metrics for valuing farm eco-system services whereby farmers are paid for services to conserve the environment in a way that ensures economic sustainability of the farmer and also India’s food security.
  • For instance, farmers can be paid for rainwater harvesting and upkeep of trees. The tricky part though is to devise a differentiating metric for varying agro-ecology — a particular tree,
  • for example, is valued differently in a rainforest and a desert. A systems approach is radically different from the present structure.
  • Past experience indicates that it would be foolhardy to expect the Indian Council of Agriculture Research to develop one.
  • Having perpetuated a kind of agricultural practice, it can’t be expected to purge itself.
  • Rather than lose another two decades, it is advisable now to engage in a collaborative effort with a consortium of farmer organisations.


  • DAIRY SECTOR: There is an ambiguous provision to levy income tax on “dairying”.
  • Either the provision should be removed or it should be clarified that it does not include dairy farmers.
  • Dairying is a part of agriculture and as per the Constitution, it is a state subject. The Centre cannot levy income tax on dairy farmers.
  • Removing such quirks will improve ease of doing business. A simple notification to mandate a minimum purchase price of Rs 32 per litre for milk by institutional buyers will help regain some of the lost trust.


  • SUGGESTIONS: BACKYARD POULTRY: A suggestion that was met with considerable interest at the finance ministry’s meeting was on providing eggs sourced from backyard poultry for the mid-day meal scheme.
  • Backyard poultry is about farmer families keeping chicken at home.
  • The benefits will be multi-dimensional; protein for school children, no-leeway for adulteration, less food miles, families regaining self-esteem, developing community spirit and jobs in all six lakh villages across the country.
  • The enabling factor is not eggs, but the process of sourcing eggs from marginal, small and landless farmers. A competitive bidding process or allowing participation of commercial poultries will kill that very objective.
  • The finance minister had suggested extending the discussion to local sourcing of other products for mid-day meals.