28 Apr 2020: The Hindu Editorial Analysis
1) Virtual, yet open: on nationwide lockdown-
Amidst the national lockdown, the Supreme Court and several other courts have been holding virtual(not physically existing as such but made by software to appear to do so) proceedings.
A question of concern to the Bar is whether virtual courts have become the “new normal” and whether it means a move away from the idea of open courts towards technology-based administration of justice without the physical presence of lawyers and litigants.
Chief Justice of India S.A. Bobde emphasises(focussed) that virtual courts are open courts too; and that one cannot describe them as closed or in camera proceedings. The correct way of framing the difference, he says, is to call them virtual courts as distinct from “courts in congregation(people coming together)”.
VIRTUAL JUDICIAL PROCEEDINGS:
A three-judge Bench headed by the CJI, in an order earlier this month, laid down broad norms for courts using video-conferencing and ratified(agreed) the validity of virtual judicial proceedings.
Two aspects are not in dispute: the vital necessity to keep the courts open even during a national lockdown so that access to justice is not denied to anyone; and second, the need to maintain physical distancing.
The Supreme Court Bar Association has written to the CJI and other judges that open court hearings should be restored at the earliest, subject of course to the lockdown ending.
Citing earlier judgments on the importance of open court hearings, the SCBA has requested that the use of video conferencing should be limited to the duration of the current crisis, and not become the “new normal” or go on to replace open court hearings.
The SCBA also has a specific request: that proceedings held virtually may also be streamed live so that access is not limited to the lawyers concerned, but is also available to the litigants and the public.
The court administration should readily agree to this. Advocates appearing in a particular case are now barred(prevented) from sharing the passwords given to them to join the proceedings through video conference. While it is theoretically possible for the parties to join their lawyers during the hearing, in practice they may be unable to travel to their offices.
SPEEDING UP THE JUDICIAL PROCESS:
Media access is also limited. These issues can be resolved through live-streaming. And in the longer term, it should become the general practice. As the use of technology is stepped up, courts should consider other steps that will speed up the judicial process and reduce courtroom crowding.
In the lower courts, evidence could be recorded, with the consent of parties, by virtual means. In the higher courts, a system based on advance submission of written briefs and allocation of time slots for oral arguments can be put in place. It may even lead to more concise(short) judgments.
Despite the possibility of technical and connectivity issues affecting the process, one must recognise that virtual hearings are no different from open court conversations, provided access is not limited. The situation forced by the lockdown must be used to improve judicial processes.
2) Casting out stigma: On appalling images at quarantine centre-
The appalling(disturbing) images of a person flinging(throwing) water bottles and biscuit packets towards people at a quarantine facility in Agra, Uttar Pradesh that emerged on Sunday show the many things wrong in India’s fight against the COVID-19 pandemic.
Those who were supposed to be kept in isolation were seen squashing(forcing) against the iron grill, desperate to fetch(get) the food and water on the other side.
The district administration has since claimed that the issue has been resolved, but not before officials betrayed their work. The hapless(helpless), fenced off people were even blamed for getting restless after their food was delayed by several hours.
Infected people and health workers taking care of them are facing dehumanising treatment from the rest of the society and they are often housed in a revolting(tense) environment in many places.
U.P. has been particularly slow in devising a sensitive and efficient strategy. Of the 75 districts in the State, 53 have fewer than 100 isolation beds; 31 have active cases. In terms of ICU beds and ventilator availability, U.P. is among the worst States. Agra had 372 cases, and 10 deaths by Sunday evening.
Meanwhile, the State bought faulty personal protective equipment that would have aggravated the risks for health workers. It is an irony that the Centre asked other States to follow the Agra model in the pandemic fight.
LEVEL OF PREPAREDNESS:
Truth be told, U.P.’s debility(weakness) is not recent or unique. The densely populated heartland of India has a history of bad governance. The shared character of weak State capacity across Bihar, Madhya Pradesh, Rajasthan and U.P. has been left unattended by successive governments.
The only reasonable goal of the prolonged lockdown could have been buying time for shoring(readying) up the limited resources, which is a function of the political leadership.
The data presented by the Cabinet Secretary last week reveal a very dismal(poor) level of preparedness by U.P., Bihar and Madhya Pradesh, while Rajasthan has managed things better by creating temporary facilities and ramping(increasing) up existing ones. Most States are, however, treating the lockdown as the solution to the pandemic.
The Centre needs to demonstrate leadership in ensuring that States scale up their capacities and communicate this to the public. It needs to particularly reassure health-care professionals that everything possible is being done to protect them.
There needs to be a campaign led by the Prime Minister to erase the stigma(stain) against patients, and to mitigate(reduce) the fear of the pandemic itself. The difference between caution(careful) and paranoia(fear) needs to be emphasised.
In India’s particular social context, the notion(idea) of social distancing has only added to the disease stigma. The Prime Minister has called for social solidarity in the face of the pandemic more than once last week, and that message needs to spread.
3) The script of disruption and a new order-
Pandemics have often changed the world and reshaped human society. Empires have collapsed. Commentators are already talking of fundamental alterations(changes) in governance and business norms.
What is left unsaid — and likely to pose an even bigger challenge — is the extent to which the pandemic will impact human values and conduct. There is already concern that a diminution(cutting) in human values could occur, and with this, the concept of an international community might well cease(end) to exist.
Each nation is tending to look inwards, concentrating on its narrowly defined national interests.
INSTITUTIONS UNDER FIRE:
It is singularly unfortunate that at a time like this, existing international institutions such as the United Nations, the United Nations Security Council and the World Health Organization (WHO) are seen to have failed to measure up to the grave challenge posed by the pandemic.
While the UN Security Council is under attack for being slow in dealing with a situation that appears, at least on the surface, far graver than any military threat in recent decades, WHO has been blamed with the charge of bias(partial) and of grossly underestimating the nature of the epidemic.
That prestigious global institutions should have been singled out for attack at this time speaks volumes about the mood prevailing(existing) across the world.
There are many other aspects of the COVID-19 crisis that will drastically impact the globe. On the economic front, the World Bank has already predicted negative growth for most nations.
India’s growth forecast for the current fiscal year has been put at 1.5% to 2.8%. Contraction of the economy and the loss of millions of jobs across all segments will further complicate this situation.
ROLE OF STATE:
What is likely to change even more dramatically are certain other aspects relating to political management and security. Both terms are set to gain new meanings. The role of the state as an enforcer(giver) of public good will almost certainly become greatly enhanced.
The dominant imperative(need) would be to not put limits on the role of the state even where the situation may not be as grave as the present one. Many pieces of legislation(laws) of yesteryears that had been relegated(downgrade) to the archives — they were perceived to be anachronistic(belonging to a period other than that being portrayed) in a modern democratic set-up — may get a new lease of life. Some pieces of legislation such as the Disaster Management Act already reflect this reality today. Other pieces of legislation could follow in its wake.
This trend is already becoming evident(obvious) to some extent across the world. Europe has shown a willingness to sacrifice personal liberties in favour of greater state control.
There are no serious protests over the fact that many of the powers being vested in the instruments of state in democracies today, to meet the current challenge, are eerily(strange and frightening manner) similar to those already practised by authoritarian regimes such as China.
Post COVID-19, the world may have to pay a heavy price in terms of loss of liberty. An omnipotent(having unlimited power) state could well become a reality.
CHINA IN THE SPOTLIGHT:
Far-reaching changes can also be anticipated(looked forward) in the realm(area) of geo-economics and geopolitics. The world needs to prepare for a sea change.
One nation, viz. China, is presently seeking to take advantage of and benefit from the problems faced by the rest of the world in the wake of the epidemic.
Already one of the most prominent nations of the world and an important player in international institutions, China remains totally unfazed(undisturbed) by the stigma that the current world pandemic owes a great deal to its negligence — the first identified and detected COVID-19 victim in Wuhan was on December 1, 2019, but it was only in the second week of January 2020, that China sounded the alarm. More importantly, it is seeking to convert its ‘failure’ into a significant opportunity. This is Sino-centrism( refers to the ideology that China is the cultural, political or economic center of the world) at its best, or possibly its worst.
BENEFIT FROM EARLY RECOVERY:
Already indispensable(crucial) as the world’s supplier of manufactured goods, China now seeks to benefit from the fact of its ‘early recovery’ to take advantage of the travails(hardships) of the rest of the world, by using its manufacturing capability to its geo-economic advantage.
Simultaneously, it seeks to shift from being a Black Swan (responsible for the pandemic), to masquerade(hide) as a White one, by offering medical aid and other palliatives(pain reliever) to several Asian and African countries to meet their current pandemic threat. In turn, it seeks to gain a geopolitical advantage by this action.
The black swan theory or theory of black swan events is a metaphor that describes an event that comes as a surprise, has a major effect, and is often inappropriately rationalised after the fact with the benefit of hindsight)
China also seems to be preparing for the eventuality that the current pandemic could hollow out(make an empty space) the financial viability of many companies, institutions and banks across the world. There are enough reports of China’s intentions to acquire financial assets and stakes in banks and companies across the world, taking advantage of the scaled-down value of their assets to support this.
India seems to have woken up only recently to this threat, after the Peoples’ Bank of China acquired a 1% stake in India’s HDFC, taking advantage of the sharp decline in the price of HDFC stocks. Across the world, meanwhile, the clamour against China’s hostile takeover bids is becoming stronger.
Several countries apart from India, such as Australia and Germany, have begun to restrict Chinese foreign direct investment in companies and financial institutions in their countries, recognising the inherent danger of a possible Chinese hostile(aggressive) takeover of their critical assets.
CHINA-CENTRIC MULTILATERAL GLOBALISATION FRAMEWORK:
This may not, however, be adequate to checkmate China, which is poised(assured) to dominate the Regional Comprehensive Economic Partnership (RCEP), thus enabling it to exploit market access across the Association of Southeast Asian Nations, East Asian nations, Australia and New Zealand.
Together with its Belt and Road Initiative, which seeks to combine regional connectivity alongside gaining a virtual economic and substantial stranglehold across Asia, China is ostensibly(seemingly) preparing the way for a China-centric multilateral globalisation framework.
The Regional Comprehensive Economic Partnership (RCEP) is a proposed free trade agreement in the Asia-Pacific region between the ten member states of the Association of Southeast Asian Nations (ASEAN), namely Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam, and five of ASEAN's FTA partners—Australia, China, Japan, New Zealand, and South Korea. India, which is also ASEAN's FTA partner, opted out of RCEP in November 2019)
A FALTERING WEST:
The geopolitical fallout of this pandemic could be still more serious. One distinct possibility is that COVID-19 would effectively put paid(to end) to the existing global order that has existed since the late 1940s.
The United States which is already being touted(tagged) in some circles as a ‘failing’ state, will be compelled(forced) to cede(give) ground. Weakened economically and politically after COVID-19 has ravaged the nation, the U.S.’s capacity to play a critical role in world affairs is certain to diminish(reduce).
The main beneficiary of this geopolitical turnaround is likely to be China, a country that does not quite believe in playing by the rules of international conduct.
Europe, in the short and medium term, will prove incapable of defining and defending its common interests, let alone having any influence in world affairs. Germany, which may still retain some of its present strength, is already turning insular(narrow-minded), while both France and a post-Brexit United Kingdom will be out of the reckoning(calculation) as of now.
WEST ASIA AND INDIA:
Coming to West Asia, both Saudi Arabia and Iran are set to face difficult times. The oil price meltdown will aggravate(worsen) an already difficult situation across the region. There may be no victors, but Israel may be one country that is in a position to exploit this situation to its advantage.
In the meantime, the economic downturn greatly reduces India’s room for manoeuvre(operation). In South Asia, it faces the prospect of being isolated, with the Chinese juggernaut(huge, powerful, and overwhelming force) winning Beijing new friends and contacts across a region deeply impacted by the economic consequences of the COVID-19 pandemic.
Likewise, India’s leverage(advantage) in West Asia — already greatly diminished(reduced) — will suffer further, with oil prices going down and the Indian expatriate community (who are among the hardest hit by this downturn) out on a limb. Many of the latter may seek repatriation back to the host country, substantially reducing the inflow of foreign funds to India from the region.
The COVID-19 pandemic is unprecedented(never happened before), involving as it does far too many variables. The very complexity of the novel coronavirus leads to radical(extreme) uncertainty. Hence, it it unlikely that the world will ever be the same again. Abnormal could well become the new normal.