The Hindu Editorial Analysis
27 July 2020

1) A Governor’s test: On convening Rajasthan Assembly-

 

GS 2- Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies

 


CONTEXT:

  1. Rajasthan Governor could have sought a floor test in the State Assembly to ensure that the government of Chief Minister Gehlot has a majority, as soon as a rebellion(betrayal) in the ruling Congress cast a shadow(effect) on it.
  2. Far from that, Mr. Mishra now appears to be bending over backwards to delay a trust vote.
  3. The Governor has cited six reasons for his procrastination(delay) in calling an Assembly session.

 

 

 

CONSTITUTIONAL OBLIGATION:

  1. But the Supreme Court has settled that the Governor has no discretionary(own) powers in summoning(calling) a session of the Assembly, and he or she is bound to act according to the aid and advice of the CM and the Council of Ministers.
  2. The Governor can require the CM and the Council of Ministers to seek a trust vote if he or she has reasons to believe that they have lost the confidence of the Assembly.
  3. Either way, the only appropriate way forward for Mr. Mishra is to convene the session and allow the democratic process to take its course.
  4. Now that the State cabinet has reiterated its demand for a session, specifying a date and an agenda as demanded by the Governor, he should not look for more excuses and bring embarrassment to the high office he holds.

PARTISAN POLITICS:

  1. The CM has said the Governor is acting under pressure from the Centre, as he took the battle to the streets.
  2. Congress MLAs supporting the CM held a dharna at the Governor’s residence, and a public protest is to be held on Monday.
  3. It is instructive to compare Mr. Mishra’s conduct with that of Lalji Tandon, the former Governor of Madhya Pradesh, when similar sabotage(obstruction) brought down the Congress government led by Kamal Nath in March.
  4. Mr. Nath had said Congress MLAs were held captive, and the voting could be vitiated, but the Governor declared that the failure to take an immediate floor test would be presumed as a lack of majority.
  5. Mr. Mishra wants to ensure that all MLAs are free to move around before a session could take place, though there is no public knowledge of anyone complaining to him being restrained.
  6. He requires the government to take into consideration the spread of the novel coronavirus, but in Madhya Pradesh, the reasoning was the opposite — the Governor did not want any delay on account of the pandemic.
  7. These arguments of two Governors four months apart in two States certainly appear contradictory, but also partisan in favour of the Bharatiya Janata Party.

 

CONCLUSION:

  1. The Raj Bhavan should not be a tool of the BJP to dislodge and install governments as and when it wants.
  2. Mr. Mishra too has a test to pass, of constitutional morality.
  3. Governors should not act at the behest(request) of the party ruling at the Centre.

 

 

2) The chilling effect of criminal contempt-

 

GS 2- Important aspects of governance, transparency and accountability

 


CONTEXT:

  1. These are strange times we are going through right now. The pandemic has brought all activities to a virtual standstill(halt).
  2. Even as workplaces and institutions are slowly and tentatively getting back on their feet, the focus is on ensuring that the more important things get done first.
  3. Priorities are being identified accordingly.
  4. For the Supreme Court of India, identifying priority cases to take up first (in a pandemic-constricted schedule) ought not to be very difficult.
  5. There are dozens of constitutional cases that need to be desperately addressed, such as the constitutionality of the Citizenship (Amendment) Act, the electoral bonds matter, or the issue of habeas corpus petitions from Jammu and Kashmir.
  6. It is disappointing that instead of taking up matters of absolute urgency in these peculiar times, the Supreme Court chose to take umbrage(outrage) at two tweets.

 

 

  1. It said that these tweets “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution... and the office of the Chief Justice of India in particular….”
  2. Its response to these two tweets was to initiate suo motu(SC’s own wish) proceedings for criminal contempt against the author of those tweets, the lawyer and social activist, Prashant Bhushan.

 

TRIVIA:

habeas corpus- a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention.

 

MONARCHICAL ORIGINS:

  1. This need to “respect the authority and dignity of the court” has monarchical origins from when the King of England delivered judgments himself.
  2. But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deference(respect) to judges does not sit well with the idea of a democracy.
  3. The U.K. Law Commission in a 2012 report recommending the abolition of the law of contempt said that the law was originally intended to maintain a “blaze of glory” around courts.
  4. It said that the purpose of the offence was not “confined(restricted) to preventing the public from getting the wrong idea about judges... but that where there are shortcomings, it is equally important to prevent the public from getting the right idea”.

 

 

A WIDE FIELD IN INDIA:

  1. The objective for contempt is stated to be to safeguard the interests of the public.
  2. if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
  3. But the definition of criminal contempt in India is extremely wide, and can be easily invoked(applied).
  4. Suo motu powers of the Court to initiate such proceedings only serve to complicate matters.
  5. And truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.
  6. Nevertheless, the Delhi High Court, despite truth and good faith raised as defences, proceeded to sentence the employees of Mid-Day for contempt of court for portraying a retired Chief Justice of India in an unfavourable light.

 

NEEED FOR CHANGE:

  1. It comes as no surprise that Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, with uncertain boundaries.
  2. He said contempt law, regardless of public good, may unwittingly trample(violate) upon civil liberties.
  3. On the face of it, a law for criminal contempt is completely not in tune with our democratic system which recognises freedom of speech and expression as a fundamental right.
  4. An excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous.
  5. It can amount to the Court signalling that it will not suffer any kind of critical commentary(criticism) about the institution at all, regardless of how evidently(obvious) problematic its actions may be.
  6. Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated.
  7. If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning.
  8. It should not be allowed to be used as a means to prevent any and all criticism of an institution.

 

OBSOLETE ABROAD:

  1. Already, contempt has practically become obsolete(no use) in foreign democracies, with jurisdictions recognising that it is an archaic(old) law, designed for use in a bygone(past) era, whose utility and necessity has long vanished.
  2. Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
  3. American courts also no longer use the law of contempt in response to comments on judges or legal matters.
  4. In England, too, from where we have inherited the unfortunate legacy of contempt law, the legal position has evolved.

 

EXAMPLE: In 2016, the Daily Mail in UK ran a photo of the three judges who issued the Brexit ruling with the caption “Enemies of the People”, which many considered excessive, the courts judiciously and sensibly ignored the story, and did not commence contempt proceedings.

 

DISPLAYING MATURITY:

  1. But Indian courts have not been inclined — or at least, not always — to display the same maturity as their peers elsewhere.
  2. It is regrettable that judges believe that silencing criticism will harbour respect for the judiciary.
  3. On the contrary, surely, any efforts to artificially prevent free speech will only exacerbate(worsen) the situation further.
  4. As was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforced(forceful) silence would probably engender(cause) resentment, suspicion, and contempt for the bench, not the respect it seeks”.
  5. Surely, this is not what the Court might desire.

 

TWO OBSERVATIONS AND A LINK:

  1. Pakistan Supreme Court hinted at banning YouTube and other social media platforms, for hosting what it termed ‘objectionable content’ that ‘incited hatred’ for institutions such as the army, the judiciary, the executive, and so on.
  2. The eerie(strange) similarity between the two sets of observations raises concerns about which direction the Indian Supreme Court sees itself heading.
  3. One can only hope that these fears are unwarranted(uncalled for).

 

 

 

3) A revolution in policy mindset-

 

GS 2- Important aspects of governance, transparency and accountability

 


CONTEXT:

  1. As lockdowns ease in countries across Asia and the Pacific in the wake of the COVID-19 pandemic, a return to business as usual is unimaginable in a region that was already off track to meet the Sustainable Development Goals (SDGs).
  2. The virtual High-Level Political Forum on Sustainable Development recently convened governments and stakeholders to focus on the imperative(need) to build back better while keeping an eye on the global goals.

 

 

UNPRECEDENTED TIMES:

  1. Asia was the first to be hit by COVID-19 and feel its devastating social and economic impacts.
  2. Efforts to respond to the pandemic have revealed how many people in our societies live precariously(difficulty) close to poverty and hunger.
  3. Many countries are taking bold actions to minimise the loss of life and economic costs.
  4. As attention shifts from the immediate health and human effects of the pandemic to addressing its social and economic effects, governments and societies face unprecedented policy, regulatory and fiscal choices.
  5. The SDGs — a commitment to eradicate(end) poverty and achieve sustainable development, globally, by 2030 — can serve as a beacon(signal) in these turbulent(tough) times.

 

GROUNDS FOR OPTIMISM:

  1. The pandemic has exposed fragility(weakness) and systemic gaps in many key systems.
  2. However, there are many workable strategies that countries have used to accelerate progress related to development goals and strengthen resilience(flexibility).
  3. Countries have taken steps to extend universal health care systems and strengthen social protection systems, including cash transfer and food distribution systems for vulnerable households.
  4. Accurate and regular data have been key to such efforts. Innovating to help the most disadvantaged access financing and small and medium-sized enterprise credits have also been vital.
  5. Several countries have taken comprehensive approaches to various forms of discrimination, particularly related to gender and gender-based violence.
  6. Partnerships, including with the private sector and financing institutions, have played a critical role in fostering creative solutions.
  7. These experiences provide grounds for optimism(positivity).
  8. Responses to the COVID-19 crisis must be centred on the well-being of people, empowering them and advancing equality.

 

A REVOLUTION NEEDED:

  1. We need a revolution in policy mindset and practice.
  2. Inclusive and accountable governance systems, adaptive institutions with resilience to future shocks, universal social protection and health insurance, and stronger digital infrastructure are part of the transformations needed.
  3. Several countries in Asia and the Pacific are developing ambitious new strategies for green recovery and inclusive approaches to development.
  4. South Korea recently announced a New Deal based on two central pillars: digitisation and decarbonisation.
  5. Many countries in the Pacific are focusing on “blue recovery,” seizing the opportunity to promote more sustainable approaches to fisheries management.
  6. India recently announced operating the largest solar power plant in the region.
  7. China is creating more jobs in the renewable energy sector than in fossil fuel industries.

 

CONCLUSION:

  1. Institutions such as the United Nations and Asian Development Bank have mobilised to support a shared response to the crisis.
  2. Now it is vital that we enable countries to secure the support they need to go beyond, to achieve the SDGs.