Granting bail is the rule
The refusal to grant bail deprives individuals of liberty by confining them in jails without trial and conviction. Discussions on bail reform usually arise when exceptional cases capture public attention. However, bail reform must begin by addressing two key facets of the criminal justice system: judicial discretion and monetary surety bonds.
The power to grant bail is a discretionary power vested in judges and it is meant to be exercised liberally. The Supreme Court has consistently reiterated that “bail is the rule, jail is an exception”. The primary purpose of bail is to ensure the accused person’s compliance with investigation, and subsequent presence at the trial if they are released after arrest. The refusal to grant bail deprives individuals of liberty by confining them in jails without trial and conviction.
At present, the power to grant bail is exercised sparingly. Subordinate courts even routinely reject bail for specific offences like minor excise offences. It is pertinent to note that a majority of those policed under excise laws belong to marginalised communities. Without grant of bail by the lower courts, the accused persons are required to approach the High Court or the Supreme Court. Consequently, most accused persons remain incarcerated as undertrials for extended periods of time. Two-thirds of India’s prison population comprise undertrials from Dalit, Adivasi and Other Backward Classes communities, often accused of minor offences.
The pendency of bail applications has particularly increased during the pandemic — both due to the shutting down of courts and the exacerbation of arrests for minor offences by the police. Despite the Supreme Court’s orders to decongest prisons, arrests for minor offences continued unabated, according to a study of pandemic policing in Madhya Pradesh by the Criminal Justice and Police Accountability Project (CPAProject).
The system of bail typically requires sureties to furnish a bond for some property valued at the amount determined by the concerned judge. The bail amount in subordinate courts, even for petty offences punishable by less than three years, is a minimum of ₹10,000. In cases of bail before the High Courts and the Supreme Court, this amount usually exceeds ₹30,000. However, even this amount is a rare mercy. For instance, a 14-year-old minor’s surety for four cases of theft and house breaking was set at ₹2 lakh by the sessions court in Bhopal. This is a form of injustice when a majority of citizens are landless with meagre incomes. A report by Azim Premji University highlights that even among regular wage workers, 57% Indians earn less than ₹10,000 per month. Official data from the Socio-Economic Caste Census pegs rural landlessness at 57%, and this is higher if you are Dalit or Adivasi. Therefore, those without assets, even when granted bail, end up languishing in jails or incur debt by paying others to stand as fake sureties to secure their freedom. A bogey of middlemen has also emerged due to these high bail amounts. This economy of exploitation receives scant attention in discussions of reform. The grant of bail on a personal bond without sureties i.e., release on one’s own guarantee without any monetary amounts, although permissible in law, is rare.
In the 1978 Supreme Court case of Moti Ram v. State of Madhya Pradesh, Justice V. R. Krishna Iyer identified the issue of unreasonably high sureties as a human rights problem. The court then suggested that surety amounts be determined by considering relevant variables such as the socio-economic location of the accused person.
Preposterous bail conditions
During the lockdown, the Gwalior Bench of the M.P. High Court deemed it fit to impose peculiar conditions while granting bail to certain applicants. These included installing a non-Chinese LED TV at the District Hospital, registration as a “voluntary COVID-19 warrior” and donating money for COVID-19 relief. This continued despite the Principal Bench of the High Court stating that bail orders requiring the deposit of cash amounts are “unjust, irregular and improper”.
Bail indiscretions by judges of lower courts and High Courts have passed by with little accountability or oversight by the apex court. Even when not ridiculous, bail conditions can transgress personal liberty and are often paternalistic. Courts introspect little about standards of liberty, reasonableness and proportionality when deciding bail matters. A report by the Centre for Law and Policy Research recommends the creation of checklists to address individual discretion while deciding bail applications. Yet, the reflection of our society’s inherent caste and class biases in judicial decisions is likely to persist even with checklists. The legacy of Moti Ram has been honoured more in breach than in its spirit.
The global angle to the farmer protests
It is not just domestic firms that are potential beneficiaries of the new farm laws; foreign agribusinesses are a danger too.
The farmers’ movement for the repeal of the three farm laws which affect them closely but have been rammed through without consulting them, has now entered its second month. It is of historic significance. It is not just about minimum support prices but also about the survival of the entire system of public procurement and distribution of foodgrains. Without ensuring the economic viability of foodgrains production in North India — the grain basket of the country — no continuity can be ensured for the public procurement and distribution system, which, despite its drawbacks, continues to provide a modicum of food security to vast numbers of our population.
Recreation of colonial times
Northern industrial countries, namely the United States, Canada and the European Union (EU), cannot produce the tropical and sub-tropical crops in high demand by their own consumers while they have mountains of surplus grain and dairy products, the only goods their single-crop lands are capable of producing for climatic reasons. They must find export markets for these. For over two decades, they have put relentless pressure on developing countries to give up their own public procurement systems, insisting that they should buy their food grains from advanced countries, while diverting their food-crop-producing land to contract farming of export crops that these industrial countries want but cannot themselves produce. In short, they want a re-creation of the economic scenario of the colonial period.
Dozens of developing countries, ranging from the Philippines in the mid-1990s to Botswana (Africa) a decade later, succumbed to this pressure. They paid the price when with rapid diversion of grain to ethanol production in the U.S. and the EU, world grain prices trebled in a matter of months from end-2007. Thirty-seven newly import-dependent countries saw food riots, with urban populations being pushed into greater poverty.
Food security for the developing world is far too important a matter to be left to the global market, but the relentless attack on their public stocking of grain for ensuring food security continues. India had barely managed to pull back from the brink a decade ago: procurement prices were raised substantially after virtually stagnating during the six years preceding the 2008 price-spike, and grain output in Punjab grew again from near-stagnant levels as economic viability improved. But absorption of foodgrains did not improve as much owing to continued exclusion of many of the actually poor from ‘Below Poverty Line’ ration cards, while unemployment caused by the 2016 demonetisation followed by the 2020 pandemic has reduced aggregate demand by now to a historic low.
A case of unfair trade
Our farmers have been exposed for no rhyme or reason to unfair trade, and to the volatility of global prices that has plunged them into unrepayable debt and distress — in one village in Punjab, there were as many as 59 widows of farmers forced into suicide. Trade with the North is unfair, because the advanced countries in the mid-1990s, converted their own price support measures to massive subsidies given as direct cash transfers to their own farmers, transfers that in a blatantly self-serving manner they wrote into the Agreement on Agriculture as ‘not subject to reduction commitments’. India along with other developing countries signed the Agreement with very little idea of the implications of the small print. For the U.S., the direct cash transfers it gives to its 2.02 million farmers, amounting to a huge half or more of its annual farm output value, uses up only 1% of its budget. For India, over 50% of the entire central government annual Budget would be required to give even a quarter of annual farm output value to our 120 million farmers, which is an economic impossibility and an administrative nightmare.
It’s about a reasonable price
The farmers have made it amply clear that they do not want petty cash handouts; all they want is a reasonable price for the vital crops they produce for the nation, so that they can cover costs and live at a modest standard. In Indian circumstances, the price support system is in fact the only feasible one. While depletion of groundwater in Punjab is a real problem, the solution lies in introducing improved agronomic practices such as the System of Rice Intensification which economises water, not in reducing rice production. One does not cut off one’s head because of a headache.
It is precisely the support prices for crops that had been deliberately put by advanced countries under completely arbitrary and absurd computation rules in the Agreement on Agriculture. The U.S. complained against India to the World Trade Organization in May 2018 that since the ‘reference price’ for calculating support was the 1986-88 average world price of a crop which they converted to rupees at the then prevailing ₹12.5 per dollar exchange rate, India’s support price per quintal for rice and wheat in 2013-14 should have been at the most ₹235 and ₹354, respectively! The actual support prices were ₹1,348 and ₹1,386, and the difference, over ₹1,000 per quintal, was then multiplied by the entire 2013-14 output of rice and wheat, and came to 77% and 67% of their output values . This, the U.S. claimed, was support provided in gross violation of the permitted 10%!
Two months ago the U.S. sent fresh questions to India. Every kind of dishonest and absurd rule had been put into the Agreement on Agriculture to short-change gullible developing countries. Our farmers are among the lowest cost producers in the world, and the support prices in 2013-14 at the prevailing exchange rate of ₹60.5 per dollar were well below global prices, which means that actual support was negative.
Current compression of global demand means that wheat and rice prices are at historic lows, advanced country farm subsidies are at historic highs and their desperation to dump their grain on our markets has intensified. While our protesting farmers have correctly identified domestic firms as potential beneficiaries of the new marketing laws that they oppose, foreign agribusiness corporations are as great a danger.
Farmers have already experienced contract farming with foreign agribusinesses in Punjab and Haryana. They say clearly that they do not wish to deal with powerful, faceless private corporations that renege on price and quantity contracts when it suits them. Despite all its inefficiency and payment delays, they prefer to sell to government agents at the stipulated minimum support prices. They are absolutely correct in thinking that deregulation of markets as mandated by the new laws, and the entry of business firms, which will be not only Indian but also foreign, mean a severe undermining of the entire system of public procurement and minimum support prices.
The ‘green energy’ push
There are many Indian intellectuals who argue that importing subsidised grain from the North will benefit poor consumers here. They forget that there is an increasingly powerful opinion advocating ‘green energy’ in advanced countries, pushing for even greater conversion of grain to ethanol; hence initial low-priced grain imports, if permitted today, will not only destroy our farmers but will soon give way to a scenario of price spikes and to urban distress as experienced earlier by developing countries forced into import dependence. Anyone with a concern for our own hard- working farmers and poverty-stricken consumers, must support the farmers’ demands against the machinations of both local and global business elites.
Climate policy need new ideas
In an urbanised world, two-third of emissions arise from the demand of the middle class for infrastructure, mobility, buildings and diet. Well-being in cities is reflected in saturation levels of infrastructure with consumption, not production, driving growth as well as high urban per capita emissions. Infrastructure worldwide has used half of total materials, mainly construction, cement and steel, which have no substitute, and will need half of the available carbon space before comparable levels of infrastructure are reached globally around 2050. Inequity is built into the climate treaty, which considers total emissions, size, and population, making India the fourth largest emitter, even though, according to the United Nations, the richest 1% of the global population emits more than two times the emissions of the bottom 50%. Clearly, net zero or carbon neutrality by 2050, and the cap on emissions it implies, applies only to countries with high per capita emissions, GDP and well-being.
Industrialisation and urbanisation are not the problem ‘per se’; the problem is the way they were designed in the colonial context: keeping commodity prices low, overly resource-intensive, defining progress as material abundance, and assuming that technology would solve the ecological problem. By 1950, the contribution of the U.S. to total emissions peaked at 40%. It has declined to approximately 26%, the largest in the world. North America and Europe, with less than one-quarter of the world population, are responsible for almost half of global material use. The share decreased to one-fifth in 2010, when Asia with half the world population used its legitimate share of half of global resource use. But the ecological damage had already been done. China, with four times the population of the U.S., accounts for 12% of cumulative emissions, and India, with a population close to that of China’s, for just 3% of cumulative emissions that lead to global warming.
India, with abundant reserves and per capita electricity use that is one-tenth that of the U.S., is under pressure to stop using coal, even as it aims to shift to electric vehicles and eliminate oil instead. India, in the UN Security Council, must push new ideas based on its civilisational and long-standing alternate values for the transition to sustainability.
Separating the wheat from the agri-policy chaff
In the farm laws debate, the focus should be on the exchequer-farm subsidies issue and the spending on farm subsidies First, why have successive governments used the exchequer to provide farm subsidies. And second, how large is India’s spending on farm subsidies as compared to those of other countries having substantial interests in agriculture?
Adverse terms of trade
It should be obvious to any keen observer of the Indian economy that the country’s agriculture, which also supports the remaining rural workforce, was, forever, living beyond its means. In 1950-51, agriculture’s share in the country’s GDP was 45%, the share of the workforce dependent on the sector was close to 70%. Now, agriculture’s share in GDP is below 16%, but almost 50% of the country’s workforce depends on this sector. Agriculture has been facing adverse terms of trade over extended periods since the 1980s, and even during the phases when the terms of trade have moved in its favour, for instance in the 1990s and again since 2012-13, there was no distinct upward trend.
Erosion of farm incomes was triggered by growing inefficiencies, which, in turn, was caused by a lack of meaningful investment in agriculture. The share of this sector in the total investment undertaken in the country consistently fell from about 18% in the 1950s to just above 11% in the 1980s. In the most recent quinquennium for which data are available (2014-15 to 2018-19), the average share of agriculture was 7.6%. However, despite this unacceptable situation, every government in post-independent India systematically ignored the need to step up investment in agriculture, which would not only have ensured more efficient use of farm resources but would have also been a crucial step towards improving farm incomes.
A quick comparison of the yields of the major crops in India with those of other countries confirms the dismal state of agriculture in this country. If one ranks countries in terms of their yields in wheat and rice — India’s two major crops — the country’s ranks were 45 and 59, respectively, in 2019. It may also be added here that this ranking would go down sharply if the areas recording high yields, such as Punjab and Haryana, are excluded. In other words, for farmers in most regions of the country, it is an uphill battle for survival amid low yields.
The market has always been the farmers’ biggest adversary, making it impossible for them to realise remunerative prices for their produce. The existing marketing system dominated by the Agricultural Produce Market Committees has long been proved to be against the interests of the small farmers, but the government, in its own wisdom, has now decided to introduce even larger middlemen that would do no more than complete the circle of misery for the farming communities.
Need for a policy
It is a no-brainer that such complex problems facing Indian agriculture cannot be resolved through ad hoc decision-making, and that this country needs an agricultural policy that addresses the challenges facing this sector in a comprehensive manner. Surprisingly, the demand for such a policy has seldom been made in a forthright manner, even by the country’s farming communities. The lack of a coherent policy for agriculture must surely be regarded among the most remarkable failures of the governments in post-Independence India.
The magnitude of this failure can be better understood if one considers the fact that the United States, with less than 2% of its workforce engaged in agriculture, has been enacting farm legislations every four years since the Agricultural Adjustment Act was enacted in 1933, the first piece of legislation of U.S. President Franklin Roosevelt’s New Deal. In a similar vein, members of the European Common Market adopted their Common Agricultural Policy in 1962, only a few years after establishing the institution. These policies comprehensively address the needs of the farm sector through proactive support from the respective governments.
Issue of farm subsidies
Thus, instead of engaging with the farming communities for putting in place a comprehensive set of policies (which also provides for the setting up of farmer-friendly institutions in order to improve the economic viability of the sector), successive governments have chosen to dole out subsidies in order to ensure domestic food security and protecting rural livelihoods.
When subsidies have virtually been made the survival kit for Indian farmers, there is possibly a need to understand the magnitude of the government dole out, also by comparing it with those granted by other countries. Members of the World Trade Organization (WTO) are expected to notify their agricultural subsidies as a part of their commitment under the Agreement on Agriculture (AoA); the subsidy notifications provide a good basis to understand where India stands vis-à-vis other countries in this regard.
Economically weak farmers
India’s latest notification, for 2018-19, shows that the subsidies provided were slightly more than $56 billion. In most of the recent years, the largest component of India’s subsidies ($24.2 billion, or 43% of the total) are provided to “low income or resource poor farmers”, a terminology that the AoA uses. However, designation of this category of farmers is left to individual members. India has notified that 99.43% of its farmers are low income or resource poor. According to the agricultural census conducted in 2015-16, these are the farmers whose holdings are 10 hectares or less. Thus, according to the Government of India, almost the entire farm sector comprises economically weak farmers.
The two major providers of farm subsidies, namely, the U.S. and the members of the European Union (EU) gave much larger magnitudes of support than India did. America provided $131 billion in 2017 and the EU, nearly €80 billion (or $93 billion) in 2017-18. Absolute numbers do not provide a good yardstick to compare the farm subsidies; the ratios of subsidies to agricultural value addition for the three countries give a much better picture. Thus, for 2017, India’s farm subsidies were 12.4% of agricultural value addition, while for the U.S. and the EU, the figures were 90.8% and 45.3%, respectively. This then is the reality of farm subsidies that India provides.
A virus that changes stripes
The emergence of the new variant shows that more genome sequencing of SARS-CoV-2 is needed.
India temporarily suspended flights from the U.K. from December 23 to 31 to prevent the new strain from entering the country. However, it is possible that many people infected with the new variant had already arrived here days or even weeks before the suspension of flights. Only through detailed epidemiological studies combined with genome sequencing data can we confirm the presence and spread of the variant in India. While the new variant, first identified in the U.K. in September, has been spreading “rapidly” there since end-November, preliminary results have shown it does not cause increased reinfection risk or disease severity.
The genomic analysis undertaken by the COVID-19 Genomics U.K. Consortium (COG-UK Consortium) found that this particular lineage was growing around 70% faster in the U.K. Is that a cause for concern in India? At the moment, the variant does not seem to pose a huge risk to India — given its propensity to spread faster, the variant should have already caused a spike in cases in some cities, which is not the case. Since the preliminary study indicates that the variant is unlikely to cause increased risk of reinfection, the new variant might not spread wildly here due to difficulty in finding dense pockets of susceptible people. This is because 40%-50% of urban India, particularly in Tier-1 and Tier-2 cities, and about 30% of people across India would have already been infected.
More sequencing needed
The emergence of the new variant brings to the fore the importance of undertaking more genome sequencing of the virus. Though the total number of recorded cases stands at over 10.2 million, India has so far sequenced only around 6,300 genomes of the SARS-CoV-2 virus. In contrast, the U.K. has sequenced nearly 1,57,000 genomes of the virus though the total number of cases is only about one-fourth of India’s.
A few days ago, the National Task Force on COVID-19 belatedly recommended the setting up of a Genomic Surveillance Consortium (INSACOG) to map the various strains circulating in India. It has also said whole genome sequencing would be done for 5% of the positive cases from all the States and Union Territories. The new variant shows the importance of genome sequencing and the need to link genome data with epidemiological and clinical information in order to make a difference in controlling the disease.
Independent emergence of variants
In a study of 120 unique variants reported in literature based on genome sequencing of the SARS-CoV-2 virus, the team found that 86 were genetic variants associated with immune escapes. Of the 86 variants, nine had over 1% frequency in the respective countries.
One of the variants (N440K) identified has a frequency of 2.1% in India and a high prevalence in Andhra Pradesh (33.8% of 272 genomes). The same variant has been identified in the U.K., Denmark and Australia. Though the epidemiological and clinical significance of the N440K variant is yet to be studied, its emergence in India and three other countries is an example of homoplasy — the ability of a mutation/variant to emerge independently in different genetic lineages.
The N501Y mutation in the new variant first identified in the U.K. is believed to make the variant more transmissible. The N501Y mutation has independently arisen in South Africa too. Due to homoplasy, the possibility of N501Y arising independently in India cannot be ruled out. So, only through increased genomic sequencing can we stay prepared.
The possibility of dangerous mutations arising independently in distant locations underscores the need for more genome sequencing of the virus to identify variants on time and for genomic epidemiology to study the spread of the variants. Linking the genome data with clinical and epidemiological information can go a long way in controlling the spread of any variants that cause more infections or severe disease.
A leopard count with a missing benchmark number
Assessing numbers of cats in select sites and monitoring areas they occupy over swathes will ensure a better overview. “India’s leopard population increases by 60% in 4 years” [since 2014] is what most newspapers highlighted when a first-of-its-kind report on leopard numbers in the country was released recently. Like always, the leopard loses out to its larger cousin. However, to get a population estimate of an elusive carnivore at the geographical scale of 21 States in India is tricky and requires colossal effort.
Most times, the goal of species conservation is to protect and increase the population of the species of interest. In this direction, scientific monitoring of their current numbers, and an increase or a decrease in numbers over the years will determine whether the conservation efforts undertaken to preserve the species are bearing fruit. To achieve this, a solid, authentic benchmark is very essential and critical. Though the report ‘Status of leopards in India, 2018’ distinctly mentions that the figure is the ‘minimum number’, the way it was launched has depicted that the country has 12,852 leopards. If we go by these figures, this is an underestimate by at least 40% because India may have over 20,000 leopards.
By-product of tiger estimate
This study focused mostly on forested habitats where tigers are found, as it was a by-product of the all-India tiger estimate. Hence other leopard habitats such as rocky outcrops, smaller dry forests, higher elevation habitats in the Himalayas, agricultural landscapes (coffee, tea, arecanut, sugarcane plantations) where leopards are known to be found in good numbers were not a part of this exercise. Similarly, much of Northeast India was excluded from the study. Hence the area studied by itself does not represent a true pan-India leopard population.
It requires enormous resources and time to carry out a study on the scale of a large nation such as ours. If this study had included leopard population estimates from other research organisations (for the same study period and which had used camera trapping as a methodology) from the areas that were not covered (by this study), it could have added significant information and leopard numbers to the current estimate of 12,852.
In Karnataka alone, Our camera trapping exercise in the BRT-MM Hills-Cauvery-Bannerghatta protected areas revealed a leopard population of 267 individuals. This protected area complex, of an area of 2,825 square kilometres, possibly represents less than 6% of leopard habitat in Karnataka. This landscape also has two competing large predators — the tiger and the dhole — who keep leopard numbers under check. Even in small, natural habitats such as the Devarayanadurga Reserved Forests and its adjoining areas, our studies showed a population of 15 leopards in a small area of 70 square kilometres.Hence it is critical that such habitats are included when the population figure for an entire nation is projected.Sanjay Gubbi works on leopard ecology and conservation in Karnataka
The claim that “leopard numbers increased by 60%” also needs to be closely looked into.
In 2014, the study estimated a minimum leopard population of 7,910 individuals from 18 different Indian States covering a study area of 92,164 square kilometres. In 2018, the study was expanded to 21 States with a study area of 121,337 square kilometres, which shows a spatial increase in the size of the study area by 25%. Even the number of camera trap locations has increased by nearly threefold (9,735 to 26,838 camera trapping locations).
So, comparing results from 2014 with 2018, and hailing it as a 60% increase is quite misleading. It simply means that we covered more area and put in more camera traps to count leopards, which resulted in higher leopard numbers. It is like carrying out human population estimates in 18 States, and the next year we conduct a similar exercise but in 21 States. Obviously, the count will result in a higher number of people, but to claim that population figures have increased would be fallacious.
The main threats
Overall, we need a benchmark number against which we can evaluate the trend in leopard numbers and threats to this carnivore. In general, habitat loss due to mining and quarrying, poaching for body parts, mortality due to vehicular collisions, retaliatory killing due to human-leopard conflict and accidental deaths due to snares set for catching wild prey all seem to be impacting the conservation of this rosette-patterned cat. If we can assess leopard numbers in a few selected sites and monitor the area occupied by them over large swathes, it will perhaps give us a better overview of leopard conservation efforts.
Read the Vice President of India’s article here on the same day since it seems to be like a message it’s not published here.
Acclimatising to climate risks
This year, policymakers, industry captains and citizens must make climate proof choices. Several parts of north India are in the grip of a severe cold wave. While winter may be longer and harsher in some regions due to La Niña, forecasters suggest that 2021 would still be among the Earth’s hottest years recorded.
A recent report by the Council on Energy, Environment and Water found that 75% of districts in India, home to over half the population, were vulnerable to extreme climate risks. While India witnessed 250 extreme climate events between 1970 and 2005, the country recorded 310 extreme climate events after 2005 alone. Further, between 1990 and 2019, India incurred losses exceeding $100 billion. Also, the intensity of floods increased eightfold and that of associated events such as landslides and heavy rainfall increased by over 20 times since 1970. Drought-affected districts have increased by an yearly average of 13 times over the last two decades. The frequency of cyclones has also doubled. Over 40% of Indian districts now show a swapping trend: flood-prone areas are becoming drought-prone, and vice-versa.
At the recent Climate Ambition Summit, the UN Secretary-General underscored the importance of adaptation and resilience to mainstream climate actions, and tagged 2021 as a “make it or break it” year. What should India do in 2021 to enhance its resilience and adaptive capacity against extreme climate events?
Building climate resilience
Firstly, India should create an Environment and Health De-risking Mission to increase emergency preparedness, secure critical resources and build resilient infrastructure and governance systems to counter the increasing frequency and intensity of extreme climate events. The Mission should also focus on democratising local climate-related and weather-related data along with integrating risk projections in national, sub-national and district disaster and climate plans. Another priority would be restoration, revival, and recreation of traditional climate-resilient practices, with a special focus on indigenous communities, often on the front lines of ecosystem conservation.
Second, India needs a comprehensive Climate Risk Atlas to present a risk-informed decision-making toolkit for policymakers at the national, State, and district level. Such an Atlas should identify, assess and project chronic and acute risks at a granular level to better prepare against extreme climate events, urban heat stress, water stress, crop loss, vector-borne diseases, and biodiversity collapse.
Third, to finance climate action at scale, risk financing instruments and risk retention and identification tools should be supplemented by contingency and adaptation funds such as the Green Climate Fund. This will enhance the public finance pool and gear up efficient allocation across sectors at risk by mobilising investments on critical infrastructures and resilient community actions. The Climate Ambition Summit also called for enhancing adaptation financing by 50% versus its current share of 20% of the total pool of climate financing.
Finally, as the permanent chair of the recently formed Coalition for Disaster Resilient Infrastructure, India should play a pivotal role in attracting private investments into climate-proofing of infrastructure. It should also promote adaptation-based infrastructure investment decision making in these countries.
An ill-conceived, overbroad and vague ordinance
Article 213 (1) of the Constitution of India provides: “If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: …” There are, therefore, three pre-conditions to be satisfied before the Governor promulgates an ordinance: first, the State Legislature should not be in session; circumstances should exist for promulgating an ordinance and importantly, those circumstances must warrant immediate action.
There is no established practice requiring the Governor (or the President under Article 123 of the Constitution) to state the circumstances for immediate action. Therefore, while the recent Commission for Air Quality Management Ordinance gave a four page justification for immediate action, the Farmer’s Produce Trade and Commerce Ordinance merely stated in the preamble what the ordinance provides for, but did not disclose the circumstances and urgency for immediate action. I believe a healthy convention should develop and the preamble to any ordinance should state the immediacy for promulgating it when the Legislature is not in session. This would greatly enhance transparency in legislation, but, more importantly, enable legislators to understand why they are, in a sense, by-passed and why a debate and discussion in the Legislature could not be awaited.
But the Supreme Court of India has held that the existence of circumstances leading to the satisfaction of the Governor can be inquired into. In other words, the court can inquire whether circumstances existed that enabled the Governor to be satisfied of the necessity of promulgating an ordinance. However, the court will not delve into the sufficiency of circumstances. Therefore, why not disclose the circumstances and reason for immediate action in the first instance rather than require people to go to court to find out? In the normal course, these are unlikely to be a state secret.
The U.P. ordinance
The preamble to the The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance , commonly called the anti-love jihad ordinance, merely indicates what it provides for, namely, unlawful conversion from one religion to another by coercion, misrepresentation and so on “or by marriage”. It then proceeds to record the satisfaction of the Governor of the existence of circumstances and the necessity for “him/her to take immediate action”.
If one fraudulent or coercive inter-faith marriage is taking place, the police can certainly prevent it, as they supposedly do in child marriages. An ordinance is not required for it. In the normal course, it is unlikely that these mass conversions would be in secret and almost simultaneous. A more realistic expectation would be specific information of some or many unwilling religious conversions likely to take place. Surely, these can also be prevented by an alert police force by invoking existing legal provisions. Assuming a somewhat unbelievable scenario does exist, how does one justify immediate action for promulgating an ordinance?
Provisions and impact
Section 3 prohibits conversion or attempt to convert any person from one religion to another by coercion or fraud etc. or by marriage. To the extent of conversion by coercion or fraud, etc. there is no problem and nobody supports it. What is conversion by marriage? Nobody gets converted by marriage. If a Hindu marries a Christian, who gets converted — the husband or wife or both or neither? One can understand conversion for marriage, but if an adult person desires to get converted to the religion of the other before marriage, what objection can anybody have?
The offence of attempting to convert poses a bigger rights issue. Section 7 provides that upon receiving information (it may be fake news) that a religious conversion is designed to take place, a police officer is authorised under the Criminal Procedure Code without orders from a Magistrate and without a warrant, to arrest the person so designing, if it appears that the commission of the offence cannot be otherwise prevented. The nature of information includes an allegation of allurement which includes an offer of any temptation in the form of a gift or gratification. So, if a boy and girl of different religions are seen talking together or eating out, it is easy for a so-called aggrieved person (who could be any stranger) to complain to the police that he overheard a conversation in which a temptation was offered to the girl, including pizza-induced weddings are an offence.
Should someone genuinely desire to convert but not get married, that person would have to inform the District Magistrate (DM) two months in advance of the plan through a declaration, under Section 8. The DM requires the police to inquire the real purpose of conversion and file a report (in a sealed cover?) with the DM. What is the true purpose of the police inquiry? If the report concludes that the desire to convert is not for a good enough reason, can the DM refuse permission to convert? Is a pre-crime scenario contemplated?
Assuming conversion is not objected to, even thereafter the DM must be informed by the converted through a declaration under Section 9. Interestingly, the DM is expected to exhibit the declaration on the notice board of the office till the contents of the declaration are confirmed. Meanwhile, the ubiquitous aggrieved person has an opportunity to object to the conversion. What next — does the DM ‘cancel’ the bona fide conversion and have the converted arrested?
Finally, the burden of proof — Section 12 provides that the burden to prove the conversion was not on account of coercion, fraud, etc. or by marriage will be on the person who has caused the conversion. How is that person expected to know the mind of the converted? It is only the person converted who can answer that question and nobody else, as in Hadiya’s case.
The ordinance is prone to abuse and we have seen its consequences — of intimidation, bullying, arbitrary arrests and the loss of a foetus. It is ill-conceived, overbroad and vague in many respects. It vilifies all inter-faith marriages and places unreasonable obstacles on consenting adults in exercising their personal choice of a partner, mocks the right to privacy and violates the right to life, liberty and dignity. In short, it is unconstitutional.