Central Vista, executive’s caprice, and rule of law
There is a pattern that emerges out of the contemporary Supreme Court of India’s most notable judgments. These rulings invariably begin with an homage to the ideas of the rule of law. But the opening tributes are left by the wayside when it comes time for the Court to apply those ideas to the case at hand. The invariable upshot: the executive government’s caprice trumps due process, and the rule of law survives only in name. The judgment delivered on January 5 in Rajeev Suri v. Delhi Development Authority, in which a 2:1 majority of the Court granted its imprimatur to the proposed redevelopment of the Central Vista in the national capital, fits the trend.
Right to public participation
The majority’s ruling begins in now-customary fashion. It holds that in a republic governed by the rule of law, the government’s actions, “howsoever laudable” they might be, must stand the test of the Constitution. But when you read on from there, a shudder of déjà vu soon sets in. The early paeans to the “high principles of democratic values” are enfeebled by the Court’s refusal to acknowledge the existence of a right to public participation, a right, which ought to be seen as fundamental in a democracy, properly understood. What is more, a repudiation of basic environmental norms is condoned, because, according to the Court, “the principle of sustainable development and precautionary principle need to be understood in a proper context”, one in which “competing public interests” must be harmonised and balanced. As we know only too well, every time the Court uses the language of harmony and balance, development eclipses every other concern.
A state-people link
Delhi’s Central Vista, originally conceived by Edwin Lutyens, stretches from India Gate to Rashtrapati Bhavan. Littered with sprawling parks and lawns, it houses not only an ensemble of landmark government buildings — from Parliament House to the Secretariats on the North and South Block — but also a number of other important public structures: among others, the National Archives of India, the National Museum and the National War Memorial. Its open spaces and the easy physical access that it affords to seats of power also mean that it has served in many ways as a link between the state and its people.
In 2009, the Central Vista was considered important enough to be designated, after extensive public consultation, as a Grade-I heritage precinct. This meant that any development inside the area had to be “regulated and controlled” in a manner that would leave its grandeur unscathed. But the proposal today, which portends enormous costs, is not any simple act of development within the boundaries of the area.
Instead, it seeks to remake the space. A new Parliament house will be erected next to the existing heritage building — it has been suggested, the central hall, where Nehru made his “Tryst with Destiny” speech, where the Constitution was adopted, would be converted into a “museum of democracy”. A new secretariat and a new residence for the Prime Minister will be built, and a number of post-Independence buildings, including the National Museum, will be taken down.
Petitions and claims
Petitions originally filed in the Delhi High Court, and transferred later to the Supreme Court, alleged that the government had failed to follow due process in approving the project. Two claims stand out: first, that the state had sanctioned an alteration to the existing land use permitted under law without sufficient public consultation; second, that the environmental clearance for the project is unreasoned, and was, in any event, obtained by illegitimately carving the project into two.
In his judgment for the majority, Justice A.M. Khanwilkar, writing on behalf of himself and Justice Dinesh Maheshwari, holds that the project required no special judicial scrutiny. According to the Court, the petitioners’ case was not predicated on the violation of any fundamental right, but only on the rigours prescribed by statute, in this case, the Delhi Development Act, 1957. That law, though, as Justice Sanjiv Khanna’s dissenting opinion notes, does, in fact, mandate, among other things, the granting of an opportunity to the public to place on record its objections, and for those objections to be considered by hearing the objectors.
Here, although objections were invited from the public, a mere three-days’ notice was given for the hearing on those complaints. The majority rules that the law does not make personal hearings mandatory, and, therefore, it was irrelevant whether sufficient time was granted or not. There are, at least, two problems with this finding: one, the Court has consistently held in the past that arbitrary state action violates fundamental rights, in particular the equality clause of Article 14. This would mean that in a project such as this, where a transformational change is brought about to the Master Plan framed under the 1957 Act, the public ought to have been accorded a sufficient chance to place on record all its objections, and a sufficient chance to be heard personally on those complaints.
Two, any civic participation can be productive only if complete information is placed in the public domain. In this case, the Board of Enquiry and Hearing (BoEH) which was appointed to consider the objections raised on the change in the land use, recognised the merit in the objectors’ plea that the full details of the project were not made available. “Among the respondents, majority of whom are Planners/Architects, there appears to be a feeling that authentic technical information on this iconic project of Central Vista is not available in public domain, which is leading to avoidable misgivings….,” its report noted. Moreover, it also recommended that “impact assessment studies on traffic, environment and heritage” ought to be commissioned at the earliest. But despite these findings the Delhi Development Authority sanctioned the proposal.
Need for adequate disclosures
According to the majority, it was sufficient that the authority had the power to do so. The absence of a reasoned order overriding the BoEH’s specific concerns was found to be of no value. As a result, the Court had effectively determined that the Constitution guarantees no independent right to public participation. But, as the dissenting judgment shows us, the most basic principles of procedural fairness — doctrines that flow from an array of constitutional promises — require the state to make adequate and intelligible disclosures. This is especially so in this case, because, as Justice Khanna identifies, the project, when executed, will have permanent and irreversible consequences.
The nature of the project ought to have also led to a more careful scrutiny on the environmental clearance granted to it by the Expert Appraisal Committee. Clearance had been sought not for the redevelopment of the Central Vista but only for the construction of a new Parliament building. This meant that the application was considered simply as a “Building and Construction Project” rather than as a “Township and Area Development Project”, which would have enhanced the level of inspection. Again, as the dissent observes, the Expert Appraisal Committee’s order granting sanction does not so much as render a finding on why the project was sliced into two.
These concerns over procedure, and over the denial of adequate public participation, might not strike us intuitively as matters of grave importance. But if the rule of law must mean something, we must regard the basic goals of our constitutional tradition with respect. That tradition, more than anything else, requires decisions made by the state to be just, fair and reasonable, both in its substance, and, however tedious it might be, in its adherence to procedure.
The front seat in electric mobility
The progression to electric vehicles is important for India because such vehicles are sustainable and profitable in the long term. Reducing dependence on crude oil will save the government money, reduce carbon emissions, and build domestic energy independence. Besides being an economically and environmentally viable option, India’s transition to electric vehicles will allow us to fine-tune our infrastructure. This will also influence India’s foreign policy as our energy security dependence will shift from West Asia to Latin America. India imported 228.6 MT of crude oil worth $120 billion in 2018–19, which made it the third-largest oil importer in the world in terms of value.
Shift to electric vehicles
In order to reduce dependence on crude, the government has drafted policies that may act as catalysts in propelling the acceptance of electric vehicles. Under the ‘Faster Adoption and Manufacturing of Hybrid and Electric Vehicles’ and its updated (Fame 2) version, the government has allocated $1.3 billion in incentives for electric buses, three-wheelers and four-wheelers to be used for commercial purposes till 2022, and earmarked another $135 million for charging stations. Besides these incentives, a proposal for a $4.6 billion subsidy for battery makers has also been proposed by the NITI Aayog. These policies are embedded with the vision to have 30% electric vehicles plying the roads by 2030. In September 2019, Japanese automobile major Suzuki Motor formed a consortium with Japanese automotive component manufacturer Denso and multinational conglomerate Toshiba to set up a manufacturing unit in Gujarat to venture into the production of lithium-ion batteries and electrodes.
Developing domestic battery manufacturing capacity may fundamentally change India’s relationship with resource-rich Latin America as the government plans to buy overseas lithium reserves. Latin America’s famous lithium triangle that encompasses lithium deposits under the salt flats of northwest Argentina, northern Chile, and southwest Bolivia holds about 80% of the explored lithium of the world. In Latin America, most of the production comes from Argentina, Chile, and Bolivia.
Scouting for mineral assets
In 2019, India’s National Aluminum Company (NALCO), Hindustan Copper Limited (HCL) and Mineral Exploration Corporation Ltd (MECL) formally signed a joint venture agreement to form Khanij Bidesh India Limited (KABIL) to scout for strategic mineral assets like lithium and cobalt abroad for commercial use and for supplying to meet the domestic requirement for battery manufacturers. At present, India’s lithium-ion battery demand is fulfilled by imports from China, Vietnam, and Hong Kong. In the last two years, India has had a growing appetite for lithium-ion batteries, and so, lithium imports have tripled from $384 mn to $1.2 bn. Notably, the government has intercepted this growing demand from its incipience. With its policy intervention to support battery manufacturers by supplying lithium and cobalt, this industry is more likely to grow domestically to support India’s goal to switch to electric mobility.
Interestingly, lithium is also used as a drug to treat bipolar disorder and is soon becoming the metal to treat a world polluted by excessive carbon emissions. Currently, India’s biggest trading partners in Latin America are Brazil, Mexico, and Venezuela, and majority of trade is concentrated on crude oil which includes 14%-20% of India’s total crude oil imports.
However, this may soon shift to lithium and cobalt. The Indian government’s initiation to take the front seat in electric mobility and preemptive action to send a high-level delegation to have a precise understanding of the availability of lithium and possibilities of joint ventures will supply domestic markets and drive international markets. Most importantly, this will be a long-term solution to clean our cities, build new markets, and skill people for new jobs towards an ‘Atmanirbhar Bharat’.
A step back in gender equality
Disproportionate burden of work
Women bear a disproportionately high burden of unpaid domestic work and care work in India. It would be instructive here to examine how Tamil Nadu, where the electoral promise (MNM) is being made, fares vis-à-vis India. The all-India Time Use Survey (2019) says that 82% of females (six years and above) as against 24% of males from Tamil Nadu participate in unpaid domestic work. The huge disparity persists even if we look at the age group of 15-59 years: 90% of females and 24% of males participate in domestic work. A similar disparity prevails at the all-India level as well: 81% of females (six years and above) and 26% of males participate in unpaid domestic work. There is an equally huge disparity in the average time spent by participating males and females. While females (six years and above) in Tamil Nadu spend, on average, 261 minutes a day in unpaid domestic work, males spend only 91 minutes. The corresponding figures for females and males in India are 299 minutes and 97 minutes, respectively. The data suggest that females bear more than 83% of the burden of domestic and care work both in Tamil Nadu and India.
Can the proposed policy address the huge burden that women are forced to endure daily? Posed differently, what should a progressive policy proposal aim at: paying women a wage for domestic and care work or addressing the huge gender disparity? The insights offered by the feminist economist Diane Elson (2017) are pertinent. The gist of her argument is this: public policy should aim at closing the huge gender gap in unpaid domestic and care work through ‘recognition, reduction and redistribution’ (Triple-R).
The party’s proposal only satisfies the first component of Triple-R, that is ‘recognition’. Paying a wage is a formal recognition of the fact that unpaid domestic and care work are no less important than paid market work, as the latter is parasitic on the former. Since it is women who predominantly carry out unpaid domestic and care activities, often at the expense of their employment prospects and health, the monetary reward is a recognition of their contribution to the well-being of the household and the opportunities forgone by women. The proposal appears progressive, for this reason and to that measure.
Failing two aspects
If the broader aim of a progressive public policy is to close the gender gap in unpaid domestic and care work, how does the proposal measure up? Specifically, will paying women a wage for domestic and care work reduce their disproportionately huge daily burden? The proposal not only fails miserably in this aspect, but also has the potential to increase women’s burden. This is because paying monetary benefits carries with it the possible danger of formally endorsing the social norm that domestic and care work are ‘women’s work’, for which they are being paid. The purportedly progressive proposal thus has the risk of furthering the gender disparity in unpaid work within homes.
What’s more, it also fails in the other crucial aspect of ‘redistribution’ of the burden of unpaid work. In fact, it might give space for men to claim that women are bound to do these unpaid activities as they are being compensated for the time spent or income foregone, and that women can at best expect men only to help but not participate daily in carrying out these activities.
The fact that only 24% of men from Tamil Nadu participate in and spend less time than women on unpaid domestic work calls for a policy proposal that increases men’s participation and the time they spend in unpaid work at home. Instead of incentivising men to participate more in household work and reducing women’s burden by redistributing the responsibility, the current proposal might do the opposite.
Incentivising men, monetarily or otherwise, to participate more and spend longer hours in carrying out unpaid domestic work is one thing, but paying women a wage for shouldering the primary responsibility is another. At best, the latter might help meet what the academic Caroline Moser referred to as ‘practical’ gender needs. But it cannot possibly address the ‘strategic’ gender needs of reducing and redistributing women’s burden. The electoral promise, therefore, lacks the transformative potential of achieving gender equality in sharing unpaid work.
Dialogues for democracy, lessons from Rajasthan
Very often, policy makers ignore the need for dialogue and deliberation with beneficiaries. Consultations are needed during the initial stages of law making of a government programme as much as a continuous dialogic exercise must be the norm for effective programme implementation. Even when policies are anchored in good principles, their implementation is often messy and requires iterations based on people’s concerns. In particular, redistributive, people-facing welfare policies need constant feedback.
We illustrate this through an example of the implementation of the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) in Rajasthan. Rajasthan has a healthy tradition of consulting with worker groups and civil society organisations not only in the initial stage of policy formulation but also to take continuous feedback from the field and carry out periodic midway course corrections. In the case of MGNREGA, engagement with civil society organisations had been institutionalised in the MGNREGA samvads; some of which were attended by the Chief Minister of Rajasthan.
MGNREGA wages are now directly credited from the central government to a worker’s bank account. While there is a case to be made for direct transfers, this system is not without its pitfalls. An overreliance on the technical architecture of MGNREGA has subverted workers’ rights. The troubles are compounded when things go wrong as workers run from pillar to post knocking on the doors of various government officials, banks, payment disbursement agencies, panchayat officials, etc.
Issue of payment rejections
One such vexing problem is that of payment rejections which are like bounced cheques. These occur when the government initiates the payment, but money does not get credited due to technical issues. There are numerous reasons for rejections and their resolutions require a thorough understanding of the complex payment architecture that not only involves various line departments and banks but also the National Payments Corporation of India (NPCI). Workers are bereft of their own money unless the core underlying problems are successfully addressed. For example, on occasions, the block level data entry operators make errors in entering the account or Aadhaar details of workers. At other times, banks consider accounts as ‘dormant’ when the accounts are not used for some time.
While these are somewhat tractable, a very common rejection reason called ‘Inactive Aadhaar’ is more complex to resolve. This happens when the linkage of the worker’s Aadhaar and their bank account is broken in the software maintained by the NPCI. Let alone workers, many government officials and bank officials are unaware of how to resolve these errors. Short-staffed and overcrowded banks mean that workers have to make multiple trips to banks only to be told rudely that their ‘payments have not come’. Field officials often resort to temporary and incorrect quick fixes which backfire leaving the workers in an abyss.
Notwithstanding the range of hostilities workers face in the process, the reasons for rejections are rarely provided, thereby adding more uncertainty to their precarity. From the perspective of the administration, it is difficult to look into each payment, understand the reasons for rejection and help the worker take action on an individual basis.
Guidelines after a workshop
To resolve payment rejections, the Department of Rural Development of the Government of Rajasthan has held numerous discussions. These resulted in a workshop involving worker groups and civil society organisations who interacted directly with the aggrieved workers, administrative officers from the village level to the State level, and bankers. As the dialogue evolved, detailed guidelines were issued with well-defined responsibility, clear timelines, and monitoring and protocols to be followed by officials. This has resulted in a significant reduction in payment rejections in Rajasthan. In a period of one year from the workshop, the Rajasthan government was able to clear ₹380 crore worth of payments to workers that were earlier stuck due to rejections. Currently, only 2.7% payments are pending regeneration from the State government, and 12.3% are under process by the banks; the goal is to ensure that every person who has worked, gets their full payment on time.
Open communication channels, an eagerness to work with worker groups and a keen ear to the ground have benefited thousands of MGNREGA workers in Rajasthan. The Right to Information (RTI) Act that had its origins in people’s movements in Rajasthan, mandated proactive disclosure of information. However, programme information on many occasions continues to be inaccessible and, when available, some are in ill-defined formats. This provision got a major boost in Rajasthan as the Rajasthan government launched the Jan Soochna Portal, or JSP, in 2019. The JSP is a single platform in the public domain providing information across 60 departments of over 104 schemes. The design and formats of each scheme have been painstakingly arrived at through a ‘digital dialogue’ involving government officials and numerous civil society organisations.
The American civil rights activist Jesse Jackson said, ‘Deliberation and debate is the way you stir the soul of our democracy.’ Federalism and good governance require constant constructive engagement between people and officials. If a government is committed to constitutional principles, then paying attention to multiple points of view and listening to the voices of the marginalised is a prerequisite. While there is still a long way to go, the ongoing consultative experiences in Rajasthan do offer hope.
Reclaiming SAARC from the ashes of 2020
Thirty-six years after it first began, the South Asian Association for Regional Cooperation (SAARC), appears to be all but dead in the water. The year 2020 marked the sixth year since the leaders of the eight nations that make up SAARC were able to meet. Further evidence of its perilous position, if any was needed, came on the SAARC charter day on December 8, where Prime Minister Narendra Modi made it clear that India’s position on cross-border terrorism from Pakistan that led New Delhi to refuse to attend the SAARC summit in 2016 in Islamabad, is still in place. This indicates that the grouping, which cannot convene unless all leaders agree to meet, is unlikely to do so in the near future.
The shadows over the meets
Over the past year, India-Pakistan issues have impacted other meetings of SAARC as well, making it easier for member countries, as well as international agencies to deal with South Asia as a fragmented group rather than a collective, working with each country in separate silos or in smaller configurations. However, the events of 2020, particularly the novel coronavirus pandemic and China’s aggressions at the Line of Actual Control (LAC) shone a new spotlight on this mechanism, and should make the Modi government review its position and reverse that trend.
India’s problems with Pakistan on terrorism, territorial claims and on its role in blocking SAARC initiatives on connectivity and trade are well known. Even so, India’s refusal to allow Pakistan to host the SAARC summit because of those problems is akin to giving Pakistan a ‘veto’ over the entire SAARC process. The insistence is particularly puzzling given that Mr. Modi and his cabinet ministers continued to attend Shanghai Cooperation Organisation (SCO) meetings along with their Pakistani counterparts, including the SCO Heads of Government meeting in November where New Delhi even invited Pakistan Prime Minister Imran Khan (he deputed another official).
While China’s incursions in Ladakh and the Galwan killings constituted the larger concern in the year, India did not decline to attend meetings with the Chinese leadership at the SCO, the Russia-India-China trilateral, the G-20 and others. No concerns over territorial claims stopped the Modi government from engaging with Nepal either, despite Mr. K.P. Sharma Oli’s decision to change Nepal’s map and Constitution to include Indian territories. In a year when the pandemic has forced most multilateral summits to go online, it is inexplicable that India cannot attend a virtual SAARC summit hosted by Pakistan, which would allow the South Asian process to move forward.
Second, reviving SAARC is crucial to countering the common challenges brought about by the pandemic. To begin with, studies have shown that South Asia’s experience of the pandemic has been unique from other regions of the world, and this needs to be studied further in a comprehensive manner (“Pandemic Preparedness and Response to COVID-19 in South Asian Countries”; ) in order to counter future pandemics. Such an approach is also necessary for the distribution and further trials needed for vaccines, as well as developing cold storage chains for the vast market that South Asia represents.
The pandemic’s impact on South Asian economies is another area that calls for coordination. Apart from the overall GDP slowdown, global job cuts which will lead to an estimated 22% fall in revenue for migrant labour and expatriates from South Asian countries, there is an expected loss of about 10.77 million jobs and US$52.32 billion in GDP in the tourism sector alone from the impact of COVID-19. World Bank reports that have estimated the losses have all suggested that South Asian countries work as a collective to set standards for labour from the region, and also to promoting a more intra-regional, transnational approach towards tourism, citing successful examples including the ‘East Africa Single Joint Visa’ system, or similar joint tourism initiatives like in the Mekong region or the Caribbean islands.
A time for regional initiatives
In the longer term, there will be a shift in priorities towards health security, food security, and job security, that will also benefit from an “all-of” South Asia approach. The impact of COVID-19 will be seen in broader, global trends: a growing distaste for ‘globalisation’ of trade, travel and migration all of which were seen to have helped the pandemic spread from China, as well as a growing preference for nativism, self-dependence and localising supply chains. While it will be impossible for countries to cut themselves off from the global market entirely, regional initiatives will become the “Goldilocks option” (not too hot and not too cold), or the happy medium between globalisation and hyper-nationalism. It would be important to note therefore, that as the world is divided between regional trade arrangements such as new United States-Mexico-Canada Agreement, or USMCA (North America), the Southern Common Market, or MERCOSUR for its Spanish initials (South America), the European Union (Europe), the African Continental Free Trade Area, or AfCFTA (Africa), the Gulf Cooperation Council, or GCC (Gulf) and Regional Comprehensive Economic Partnership, or RCEP (South East Asia and Australasia including China), India’s only regional trading agreement at present is the South Asian Free Trade Area, or SAFTA (with SAARC countries).
In dealing with the challenge from China too, both at India’s borders and in its neighbourhood, a unified South Asian platform remains India’s most potent countermeasure. At the border, it is clear that tensions with Pakistan and Nepal amplify the threat perception from China, while other SAARC members (minus Bhutan), all of whom are Belt and Road Initiative (BRI) partners of China will be hard placed to help individually. Significantly, from 2005-14, China actually wanted to join SAARC. Officials recall that every SAARC summit during that decade period saw a discussion on whether China could be upgraded to member status (from observer status). On each occasion, it was fought back by India and most other countries in the grouping, with the logic that despite sharing boundaries with three South Asian countries, China is not South Asian.
Despite the rebuff, China has continued to push its way into South Asia, as several statistical indicators for investment, trade, tourism and South Asian student preferences for universities. In the past year, the Chinese government, and its Communist Party of China party arms such as the United Front Work Department, or the UFWD have used the opportunities presented by the pandemic to push ahead with this quest. Apart from sending medicines, personal protective equipment kits, and promising vaccines to most SAARC countries as part of its “Health Silk Road” initiative, China’s vice minister has held three separate meetings with combinations of Afghanistan, Bangladesh, Nepal, Pakistan and Sri Lanka, and discussed economic issues and Sinovac vaccine availability with them. Experts suggest that it is only a matter of time before Beijing holds a meeting of all SAARC countries (minus India and Bhutan), for they are all part of the BRI, and even that they will be invited to join RCEP, which India declined.
India’s steps, more bilateral
In contrast, India stepped up its health and economic diplomacy in the region, but apart from one SAARC meeting convened by Mr. Modi in March, these have been bilateral initiatives, not a combined effort for South Asia. These are some of the reasons that led all SAARC leaders other than Mr. Modi to urgently call for the revival of SAARC during their charter day messages.
Despite the despondency, the rationale for its existence remains intact: while history and political grievances may be perceived differently, geography is reality. Seen through Beijing’s prism, India’s SAARC neighbourhood may be a means to contain India, with the People’s Liberation Army strategies against India over the LAC at present, or in conjunction with Pakistan or Nepal at other disputed fronts in the future. New Delhi must find its own prism with which to view its South Asian neighbourhood as it should be: a unit that has a common future, and as a force-multiplier for India’s ambitions on the global stage.
The debilitating side-effect of a flawed vaccine trial
More than a decade since the human clinical trial of the human papilloma virus (HPV) vaccine — it was controversial and carried out without proper consent on nearly 23,500 girls in the 10-14 age group in Vadodara, Gujarat and Khammam district of Andhra Pradesh — and eight years after the Supreme Court of India slammed the government for slipping into “deep slumber” in addressing the “menace” of illegal clinical trials carried out in India by multinational countries, nothing much seems to have changed.
The phase-3 clinical trial of Bharat Biotech’s COVID-19 vaccine, Covaxin, by a private hospital in the Bhopal-based Peoples College of Medical Sciences & Research Centre appears to suffer from serious violations and as a result, closely resembles the HPV vaccine trial. The HPV vaccine trial was carried out by the Program for Appropriate Technology in Health (PATH), a non-governmental organisation, in collaboration with the governments of Andhra Pradesh and Gujarat and the Indian Council of Medical Research (ICMR). Incidentally, the ICMR, tasked with promulgating research ethics guidelines, is the co-sponsor of the Covaxin trial.
The informed consent process, the cornerstone of ethics in clinical trials, was grossly violated during the HPV trial in Andhra Pradesh; consent forms of nearly 2,800 child participants were signed by a hostel warden or headmaster and not the parents.
During a press conference on January 10 and even earlier to other media outlets, the Covaxin trial participants alleged that they were ignorant of what they were signing up for. If true, it amounts to the consent nowhere close to being a truly informed one. According to them, no efforts were apparently taken to explain and inform them of the pros and cons of taking part in the trial, nor were they told that they would either get a vaccine candidate or a placebo. Instead, they were misled by the trial site to think they were getting a COVID-19 vaccine for free. The participants were not made aware of their rights to free medical care in case of any adverse events. They were not given any time or option to discuss with the family before signing the consent form, either. As documents show, at least in a few instances, the consent was taken after vaccination, which amounts to a serious violation. They also alleged that they were not given a copy of the consent form and other documents to prove their participation.
Following the October 2013 Supreme Court order, the Indian regulator had in 2019 made mandatory an audio-video recording of the informed consent process of each vulnerable individual participant before conducting clinical trials. And a written consent from the participant had to necessarily be taken before the audio-video recording of the informed consent process. Since many of the 700-odd participants are illiterate, an impartial witness should have been present during the entire informed consent process to append his/her signatures to the consent form. There is no evidence that this was followed, based on what the participants said during the press conference.
In the Covaxin trial in Bhopal, over a dozen of the 700 adults from three-four communities living close to the hospital have told the media that they were lured with monetary benefits of ₹750. Luring people to participate in clinical trials by offering money is unethical.
However, the company in a press release states that a decision was taken to reimburse all participants at the rate of ₹750 for each study visit. The company claims the reimbursement amount was approved by every institutional ethics committee at the study sites, and is not an inducement.
While reimbursement for actuals, such as lost wages and cost of transportation to the trial site, is permissible, it amounts to inducement when a payment of ₹750 is openly announced; during the press conference, the participants highlighted the payment announcement. It is unclear if the institutional ethics committee even approved street announcements to be made inviting people to the trial. Whether a site can advertise and even the content of such promotional material need prior approval from the institutional ethics committee.
Follow-up and care
While free medical care in case of any adverse event is a right of each trial participant, there have been at least a few documented instances of violation. In other cases, the participants, unaware that they were part of a clinical trial and hence entitled to free medical attention, had sought care from private practitioners. With at least some participants not possessing their own mobile phones, medical follow-up over phone, even if there was one, was not actually possible.
If the HPV vaccine trial was investigated by a Parliamentary Standing Committee, such an independent investigation becomes all the more necessary as the ICMR is the co-sponsor of the trial.
One of the participants at the Peoples College of Medical Sciences & Research Centre died on December 21. While Bharat Biotech claims that all due processes were followed following this development, it is unclear why no information about the death of the trial participant, who belongs to a tribe, was made public by the Indian regulator. In the case of serious adverse events following injection with AstraZeneca’s COVID-19 vaccine in a trial outside India, the information was made public, and the trial was halted at all sites while an investigation was under way. The Serum Institute was also ordered to halt the trial by the Indian regulator pending investigation.
Only a thorough and impartial probe will restore confidence in clinical trials. All the more as a couple of COVID-19 trials have already progressed to the phase-3 trial stage and few more are in the early stages of testing. With two vaccines already approved for restricted use and the virus spread slowing down, recruiting participants will prove to be all the more challenging. The conduct of a highly unethical trial, if not thoroughly and quickly investigated, can adversely impact the conduct of these studies already under way.
Farm laws, their constitutional validity, and hope
With the Supreme Court of India staying the operation of the farm laws and setting up a committee of experts to negotiate with the government and the farmers, the agitation being carried on by the farmers is entering a new phase. The farmers’ unions have not reacted favourably to the formation of the experts’ committee. As it happens, the committee does not comprise entirely impartial experts. Most of them are well known and strong defenders of the farm laws, and are critical of the agitation.
For conducting negotiations with both the government and the farmers, the members of the committee ought to and should be known to have an open mind on the core issues, which alone will create a necessary confidence in the parties concerned. The farmers have, however, made it clear that they will not agree to anything less than the repeal of these laws. This would mean that the present agitation is likely to continue indefinitely. It is not yet clear what impact the report of this committee will have on the final decision of the Supreme Court on the question of the constitutional validity of the farm laws. That is the real issue before the Supreme Court. So whatever the experts’ committee recommends, the question of the constitutional validity of the farm laws can be decided only after a proper hearing of the matter before the Court. The most curious thing about a decision on this issue by the Supreme Court is that if the Court upholds the validity of the laws, the agitation will not stop because the farmers’ demand is for the repeal of the laws.
But the government of India seems to have taken a maximalist approach, particularly on the question of a repeal of the farm laws. While the repeal of a law is a simple legislative act, having to repeal a law in which the government has invested a lot of its prestige is not so easy especially for a government which is extremely proud of its numerical majority in the Lok Sabha, which has generated a great deal of hubris. On the other hand, the farmers are unyielding on the demand for a repeal.
Not in accordance with rules
The constitutional validity of the farm laws has been challenged in the Supreme Court mainly on the ground that Parliament has no legislative competence to enact these laws, the subject matter of which is essentially in the State list. But there is a more fundamental reason to challenge these enactments which will be examined now.
It is a universally acknowledged fact that the voting on the Farm Bills in the Rajya Sabha was not done in accordance with the rules of the House. These rules require the Chair to order the recording of votes (division) by members even when one member demands it. The Deputy Chairman of the House, who was conducting the proceedings at that time, did not order division although a few members openly and loudly demanded it. It is true that there was disorder in the House but it could have been controlled and a proper voting could have been conducted. Disorder was not taking place for the first time in the House. Thus, there was a violation of the rules of the House in passing the Bills by voice vote when there was a demand for division.
Voice vote is unrecognised
But the matter goes beyond the violation of the House rules. It involves the violation of the Constitution itself. Article 100 says that all questions at any sitting of either House shall be determined by a majority of votes of the members present and voting. Majority can be determined only in terms of number, and therefore what this Article requires is that all questions in the House should be determined by recording the votes of the members present and voting. Majority cannot be determined through voice vote. In fact the Constitution does not recognise voice vote to determine majority in a legislature. However, deciding a question by voice vote is a practice prevailing in all legislatures. This was devised for the sake of convenience and there is always an assumption that since the government of the day has a majority, any proposal before the House has the support of the majority. But that assumption goes when a member demands voting in the House and the Chair has, then, no option but to order the actual voting. Since this was not done and the Bills were all passed by voice vote, there is a violation of the rules as well as the Constitution.
Options before the judiciary
It is true that Article 122 of the Constitution protects the proceedings of the House from judicial review. But this protection is available only when the proceedings are challenged on irregularity of procedure. Violation of the Constitution is not a mere irregularity of procedure. The Supreme Court in Raja Ram Pal’s case had clarified that the proceedings can be challenged on substantive grounds like violation of the Constitutional provisions. Therefore, the Farm Bills were passed in the Rajya Sabha in violation of Article 100 of the Constitution and can be challenged in the Supreme Court on that ground.
Now what are the options before the Supreme Court if and when such a challenge is made? The Court can strike down the whole laws as the requirement of Article 107 has not been fulfilled. This Article says that a Bill shall not be deemed to have been passed unless it has been agreed to by both Houses. As has been explained above, the Bills have not in fact been passed by the Rajya Sabha because the majority had not been determined in accordance with Article 100. It would mean that the three Bills did not become laws.
The Court may also invalidate the proceedings of the Rajya Sabha and send the three ‘Acts’ back to that House for further proceedings in accordance with the constitutional provisions. If this happens, it may provide a good opportunity to the government to revisit these laws. These can then be referred to a Select Committee of the Rajya Sabha which can invite the farmers and all other stakeholders and finally produce better Bills. Such an opportunity is invaluable in the present circumstances when the government is facing virtually a no-win situation. If, on the other hand, the government decides to withdraw the Bills after these are sent back to the Rajya Sabha on the ground that it wants to bring fresh Bills with altered proposals, it will have that option too under the rules of the House. The possibility of these options can be creatively considered for finding a solution to this problem.
Centrality of Parliament
We may not forget that the issue that needs to be settled by the top court is only the constitutional validity of the laws. In resolving a problem like the agitation by farmers against the laws, the centrality of Parliament in the legislative process in all its dimensions should not be lost sight of. Once the Court decides the legality or constitutionality of a law, the political and legislative aspects of the issue will have to be dealt with only by Parliament. Parliament and its systems alone can produce a satisfactory solution. The only condition is that the government which is accountable to Parliament should genuinely demonstrate its faith in those systems.