Being tethered to bars during a pandemic
Prisoners & Prisons, by the very nature of their situation, the physical limits of their confinement, they are obliged to stay in poorly ventilated and over-crowded cells. Being holed up in that condition almost seems to form part of the punishment. A jail and a dungeon are almost interchangeable terms.
Data from the U.S., the U.K.
Criminal justice has ‘activists’ in the United States observing with a sharp eye, prison conditions. We do not. Writing in Diplomatic Courier on December 29, 2020, Carolyn Nash reported that in March 27, last year, a letter signed by over 40 public health experts called federal prisons and immigration detention centers “breeding grounds for uncontrolled transmission” of the virus. By September, 44 of 50 COVID-19 clusters were found to be located in prisons. In Texas, the virus had, by then, killed more than 230 people in jails and prisons, 80% of whom had not been convicted of a crime. By November, the number of cases in Michigan prisons more than doubled in two weeks. A Minnesota organiser called his state’s soaring rate of prison infections “a human rights disaster”, she says.
England and Wales have 121 prisons housing about 79,000 prisoners. As the novel coronavirus grew alarmingly in Britain, a mass testing programme commenced for all prisoners in 28 of these prisons in July, starting with symptomatic prisoners. The United Kingdom Ministry of Justice figures (The Guardian, November, 2020; ) showed that prisoners testing positive in September stood at 883 (By October the number rose to 1,529, with five deaths. This rise was doubtless computed on account of increased testing.
The Indian situation
Do we have such statistics for India? They do exist, surely but not in handy, ready form in the public domain.
But the tragedy in human terms is that such statistics are not being demanded of our criminal justice system. In the United States and in the U.K., pandemic control in prisons is being driven by enlightened public opinion. Not so in India. When we hail an ‘unlocking’, we are not thinking of our lock-ups. This is not surprising in a society such as ours which seems to have concluded, prematurely, that the novel coronavirus is behind us, which is not the case. But more pertinently, this is not surprising in a society that has a poor tradition of human rights activism.
It takes a prominent prisoner such as the writer, Varavara Rao, or the Khudai Khidmatgar Faisal Khan going down with the virus for the enormity of the disease combining with imprisonment to dawn on us. That our 1,400 or so prisons, ‘housing’ over 4.5 lakh prisoners are breeding grounds for the virus does not occupy our thoughts, even our virus-related thoughts.
But how about the Indian state ?
The Prisons Act of 1894 makes prisons the exclusive responsibility of State governments. Over the years the condition of prison life has moved up on the human civility and dignity scale, with the venues now being called correctional homes and over 60 ‘minimum security’ open prisons having been set up. Of the 4.5 lakh prisoners that our correctional homes hold, according to the National Crime Records Bureau’s report for 2019 , about 3.3 lakh are ‘under-trial prisoners’(UTP) , against whom investigation or trial is supposed to be ‘in progress’. These 3.3 lakh ‘under-trial prisoners’ have been detained under Section 167 of the Code of Criminal Procedure (CrPC) which provides for “Procedure when investigation cannot be completed in 24 hours”. The original CrPC of 1898 specified the period of detention as 15 days. This has, by amendments, been extended to periods that can go up to 90 days and, in some exceptional situations, even indefinitely.
Violation of rights
Surendra Nath, a former Additional Secretary in the Ministry of Justice, Government of India and member of the Constitutional Conduct Group, has pointed out : “…(O)ut of 3.3 lakh, about 2.2 lakh are either not likely to be even charge-sheeted, or they are likely to be acquitted.”
B.D. Sharma, a former Head of Correctional Services in West Bengal, who has done amazing work in giving that nomenclature true meaning, describes their condition thus: “This huge violation of the basic human rights of UTPs in such large numbers is made further unbearable by overcrowding, poor living conditions, inadequate healthcare facilities and torture by other rowdy prisoners in our prisons.” And he highlights the huge injustice caused to the families of the ‘under-trial prisoners’ “languishing in prisons for long years particularly their children who are denied a normal childhood, proper education, and are exploited by cruel sections of the society in various way especially the girl children and many of whom are forced to take to the path of crime”.
Is this acceptable in a country which boasts of a Constitution, in the Preamble to which we give unto ourselves, before anything else — Justice?
The virus gives cause for an immediate review of all prisoners’ vulnerability to the epidemic, starting with that of ‘under-trial prisoners’ who are suffering two privations — one, being immobilised, most probably unjustly, and two, being tethered to the risk of infection.
This review has to comprise 100% and repeated testing procedures in all prisons, especially sub-jails, which form the biggest category among them and the least ‘equipped’ and an arrangement for the isolating and hospitalisation of those testing positive. No prisoner who has tested positive can be allowed to remain within the crowded confines of that venue without transmitting the disease to a progressively rising concentric circle of inmates.
But above all, the population of prisons has to be vigorously bought down.
A case for prison reform
Through a salutary amendment, the Code Of Criminal Procedure (Amendment) Act, 2005, a much-needed Section 436-A has been introduced in the CrPC. Excluding offences for which capital punishment is envisaged, it provides for an under-trial to be released on a personal bond, with or without sureties if the period spent in detention by the under-trial has been for more than half the maximum period of imprisonment prescribed for that offence.
The 2005 amendment had two aims : one, de-congestion and two, fairness. Today, in our COVID-19 times, if congestion is per se held to be dangerous, de-congestion in prisons through a prescribed legal procedure becomes not just a desirability but a duty. And I urge the immediate and massive activation of Section 436-A without sureties so as to benefit all under-trials eligible for it.
It is not just desirable but axiomatic that the 2005 amendment to the CrPC be activated on a nation-wide and urgent basis as a penological imperative, a state duty and a human right. And while their release is being actuated, it also follows that even as anyone in a state hospital may rightly expect to be vaccinated on a priority against the virus, so should inmates of the ‘Hospitals of Correction’.
While ‘Prisons’ is in the ‘State List’, as is ‘Public Health’, the Constitutional responsibility of handling infectious and contagious diseases figures in the Concurrent List. It is the Centre that must show the States its concern in this and lead from the front.
Mining in India equals selling the family gold
The principle that the economy must be “sustainable” — we cannot compromise the ability of future generations to meet their needs — is beyond question. Climate change and high levels of consumption already threaten to rob future generations of a planet that is liveable. The principle of Intergenerational Equity would make it imperative for us to ensure future generations inherit at least as much as we did.
How it is unsustainable
India’s National Mineral Policy 2019 states: “natural resources, including minerals, are a shared inheritance where the state is the trustee on behalf of the people to ensure that future generations receive the benefit of inheritance.”. The primary objective of a trustee/manager is to maintain the corpus of the trust, the shared inheritance of natural resources.
The extraction of oil, gas and minerals is effectively the sale of this inheritance, with royalties and other proceeds being the consideration paid in exchange for the mineral wealth extracted. Unfortunately, governments everywhere treat the mineral sale proceeds as revenue or income, a crucial error which hides the real transaction — a sale of inherited wealth.
This results in governments selling minerals at prices significantly lower than what they are worth, driven by lobbying, political donations and corruption. For example, it is estimated from the annual reports of Vedanta that over eight years (2004-2012), the State of Goa lost more than 95% of the value of its minerals — after extraction costs and a reasonable profit for the extractor. Any loss is effectively a hidden per-head tax which makes a few extractors and their cronies super rich. Inequality grows sharply. This is the economics of loot.
Worse still, the trifles received by the government are treated as “revenue” and happily spent, leaving neither the minerals nor their value for future generations to inherit. This is just not sustainable.
Losses, error in accounting
There is also growing evidence from the International Monetary Fund that many governments of resource-rich nations, including the United Kingdom and Norway, face declining public sector net worth, i.e., their governments are becoming poorer. Both indicate unsustainable mining.
Losses in mineral value drive many of the other problems with mining. In effect, the people and future generations of Goa have sold mineral wealth worth ₹100 for ₹5, a loss of ₹95. Naturally the extractors are keen to extract as quickly as possible and move on. Trees, tigers and tribals are labelled as anti-development or anti-national.
It is important to understand that as long as the Government Accounting Standards Advisory Board does not correct this error in the standards for public sector accounting and reporting for mineral wealth, politicians and voters will advocate increasing extraction. This will lead to every bit of mineral being extracted if there are no moral or legal safeguards against such wanton loot. It is essential that as a nation we change our paradigm to understand minerals as a “shared inheritance”, not a source of “windfall revenue”.
How to manage it
Since minerals are a shared inheritance held in trust for the people and future generations, our foremost duty is to maintain the value of our children’s inheritance by avoiding theft, loss, waste or consumption. Leaving the minerals undisturbed fulfils our duty.
Therefore, if we extract and sell our mineral wealth, the explicit objective must be to achieve zero loss in value; the state as trustee must capture the full economic rent (sale price minus cost of extraction, cost including reasonable profit for extractor). Any loss is a loss to all of us and our future generations, and makes some rich; that is patently unfair. India’s National Mineral Policy 2019 says: “State Governments will endeavour to ensure that the full value of the extracted minerals is received by the State.”
Like Norway, the entire mineral sale proceeds must be saved in a Future Generations Fund. The Future Generations Fund could be passively invested through the National Pension Scheme framework.
Setting a global judicial precedent, in 2014 the Supreme Court ordered the creation of a Goa Iron Ore Permanent Fund, which already has a corpus of around ₹500 crore — Goa Foundation vs UOI & Ors., WP (civil) 435 of 2012, judgment on April 21, 2014.
On fair mining
For the Indian economy this is sustainable — capital has been maintained; the savings rate would rise, making available more long-term domestic capital; it diversifies risk while likely improving returns — it is nearly impossible to outperform the market rate of return; the dividend is in effect a Universal Basic Income; lower inequality leads to higher economic performance, and as budgets no longer have easy mining money, public investment, and tax administration will become more effective and efficient. This is a six-fold economic boost.
These principles of fair mining are fully constitutional, promoting justice, liberty, equality, and fraternity. They are moral, ethical, fair, right and sustainable. The reduction in losses would limit corruption, crony capitalism and growing inequality. They fulfil our duties to our future generations. Let us be the generation that changes the course of history for the better, not the one that consumed the planet.
India-Nepal relations in a new transition
As a unique characteristic, Nepal’s internal political fundamentals continue to shape its foreign policy choices. In the process, what gets lost is the scope of pursuing ‘enlightened self-interest’. In such a scenario, any inbound or outbound delegation is seen from a different prism, and anything discussed or not equally gives ample space to interpretation and misinterpretation. The year 2020 marked China’s unprecedented aggression, with an aim to counter India’s conventional edge in Nepal and South Asia at large. Accordingly, China’s geo-strategic, economic and infrastructural drives were made tempting to a precarious Nepal with its fragile democracy and the adulterated ideological standing of the ruling Communist Party of Nepal (CPN).
Amidst the domestic political chaos, the Minister for Foreign Affairs of Nepal, Pradeep Kumar Gyawali (picture), visited New Delhi for the sixth meeting of the India-Nepal Joint Commission on January 15, 2021, that was co-chaired by the External Affairs Minister S Jaishankar.
Business as usual
The keenly awaited meeting proved to be more focused on confidence-building measures such as exchanges of courteous remarks on significant and concrete progress made since the last meeting of the Joint Commission in taking forward several bilateral initiatives, and the close cooperation between the two sides in combating the COVID-19 pandemic. An early provision of vaccines to Nepal was positively considered by India. On the development partnership front, the expansion of the Motihari-Amlekhganj petroleum products pipeline to Chitwan and the establishment of a new pipeline on the eastern side connecting Siliguri to Jhapa in Nepal formed a part of the discussions. For the upgraded first passenger railway line between India and Nepal from Jaynagar to Kurtha via Janakpur, the elusive operating procedures for commencement of train services have been discussed. Other “cross-border rail connectivity projects, including a possible Raxaul-Kathmandu broad gauge railway line”, were also discussed.
The Joint Commission laid emphasis on the need for facilitating cross-border movement of people and goods, thus giving the sub-regional cooperation, its actual due. The recently inaugurated Integrated Check Posts (ICPs) at Birgunj and Biratnagar have helped in the seamless movement of people and trade between the two countries. The construction of a third integrated check post at Nepalgunj has already commenced, while the new integrated check post at Bhairahwa would begin shortly. Since Nepal relies on India’s seaports in a big way for trading, and goods are transported by road, the integrated check posts are expected to ease trade and transit.
The joint hydropower projects, including the proposed Pancheshwar Multipurpose Project, should get positive momentum following this round of meeting. India’s support to two more cultural heritage projects in Nepal, namely, the Pashupatinath Riverfront Development and the Bhandarkhal Garden Restoration in Patan Durbar is significant in the times when China is exploring all avenues to disrupt Nepal’s natural choice in policy-making. Moving away from the recent hiatus, Nepal expressed support for India’s permanent membership of an expanded UN Security Council (UNSC) to reflect the changed balance of power. The next meeting of the Joint Commission in Nepal should be crucial in giving a new direction to the bilateral ties, keeping a balance between change and continuity.
Stirrings for change
The growing disenchantment among the Nepali masses over the increased centralisation of power, failure of the Provincial System in addressing the developmental issues, misuse of Presidential authority by Nepal’s President Bidya Devi Bhandari, and unprecedented corruption provide ample room for a re-setting of Nepal’s democracy. Worryingly, a large section of the people want the ‘cultural Monarchy’ back to substitute the Presidential system and a re-establishment of certain traditional ways to governance. While the unusual developments are taking place in Nepal, there are many who still think that India is comfortable with some changes as its Nepal policy is heading very clearly towards deeper engagement with all sections.
The timing of the high-profile visit was strategically important as in the last few months, as Mr. Oli had categorically placed conditions before engaging with India at the top decision-making level. With a possibility of surviving the self-created political stalemate feeble, Mr. Oli is believed to be receptive towards unexpected changes. This is not something unfounded as one of the key centres of the pro-monarchy agitation is his constituency in eastern Nepal, Jhapa. In the time of transition, his outreach to India is being seen in such contexts. A great survivor so far, he is believed to be open to gaining a new ground of support from different quarters including India. His China connection has been artificial and failed him at times, and he knows this better than anyone else. It is equally true that he has failed China too at times; by breaking even the cosmetic ‘Communist unity’ in Nepal, he has finally made China’s hyper-interventionism a wasted effort.
Democracy in Nepal is achieved, not ascribed and its people deserve a better deal than what has been offered by the Oli-Bhandari duo. Like many other democracies across the world, Nepal’s democracy has been affected with an extreme rise in majoritarian sentiments. Nepal cannot afford to enter in another round of political instability, and those who have commanding authority to spearhead India-Nepal bilateral relations must give a humane consideration to it. At the crossroads, Nepal needs action and to come to term with realities.
Removing the creases in housework valuation
The wife owes service and labor to her husband as much and as absolutely as the slave does to his master. This grates harshly upon the ears of Christendom; but it is made palpably and practically true all through our statute books, despite the poetic fancy which views woman as elevated in the social estate; but a little lower than the angelsAntoinette Brown Blackwell, the first woman protestant minister of the United States.
We go a step ahead and glorify our women as goddesses but deny them equal rights, and under the latest Uttar Pradesh and Madhya Pradesh Ordinances, even the right to choose their spouses. What is the history of recognition of work by wives as work in the West? What have the legislative initiatives and judicial responses been in this regard?
The burden on women
As in the 2011 Census, while 159.85 million women stated household work as their main occupation, a mere 5.79 men referred to it as their main occupation. Justice N.V. Ramana in his crisp and authoritative concurring judgment of January 5, 2021 in Kirti and Another v. Oriental Insurance Company has referred to the ‘Time Use in India-2019 Report’ of the National Statistical Office, Government of India (published in September 2020) which says that on an average, while Indian women spend 299 minutes a day on unpaid domestic services for household members, men spend just 97 minutes. Women also spend 134 minutes in a day on unpaid caregiving services for household members. A report entitled ‘Women’s Economic Contribution through their Unpaid Work: A Case Study of India’ (2009) had estimated the economic value of services by women to be to the tune of a whopping $612.8 billion annually.
Justice Ramana not only listed the various activities women undertake but also referred to British economist Arthur Cecil Pigou who had lamented that the household work by wives is not taken into consideration in calculating national income.
Other judicial observations
In Arun Kumar Agrawal v. National Insurance Company (2010), the Supreme Court not only acknowledged the contribution of the housewives as invaluable but also observed that it cannot be computed in terms of money. Her gratuitous services rendered with true love and affection cannot be equated with services rendered by others. Similar observations were recently made in Rajendra Singh (2020). But then these cases dealt with a limited question of compensation under the Motor Vehicles Act to calculate the compensation for the death of homemakers, and not the recognition of a wife’s right in her husband’s income during the subsistence of marriage. Justice A.K. Ganguly in Arun Kumar Agrawal (2010) referred to Census 2001 that is carried out under an Act of Parliament and had categorised those who perform household duties — i.e. about 36 crore women in India — as non-workers and clubbed them together with beggars, prostitutes and prisoners (who are not engaged in economically unproductive work).
A hierarchical structure
For centuries, the English common law of marital status was starkly hierarchical. Forget the recognition of a homemaker’s work as work; she had no right even in respect of her work outside home. In fact till 1851, no country had recognised a wife’s right in earnings of any sort. If a housewife worked for pay in or out of the home, it was her husband’s prerogative to collect her wages. Strangely, seventh century Islamic law clearly mandates husbands to pay wives if they decide to suckle their children and entitle them to spend certain portions of husband’s money without his consent.
By the middle of the 19th century, some American States started reforming the common law of marital status by enacting the “Married Women’s Property Acts”. Some of these statutes exempted the wives’ real property from their husband’s debts. By 1850, the era of “earning statutes” started which granted wives property rights in earnings from their “separate” or “personal” labour. But the Census measures of the economy that appeared in the aftermath of the American Civil War characterised household work as “unproductive”, and, consistent with this gendered valuation of family labour, excluded women engaged in income-producing work in the household from the count of those “gainfully employed”. It seems that the Indian Census referred above followed this regressive precedent.
Home and market for centuries were considered as two distinct spheres. The market was a male sphere of selfish competitiveness, but the home was celebrated as a female sphere, a site of spiritual uplift that offered relief from the vicissitudes of market struggle. American feminist economist Nancy Folbre rightly remarked, “the moral elevation of the home was accompanied by the economic devaluation of the work performed there”. The tendency of a “separate spheres” reasoning was thus to reinforce the legal ordering of family life and justify a husband’s control of family assets.
Accordingly, in 1851, at the Worcester Convention, it was resolved: “that since the economy of the household is generally as much the source of family wealth as the labor and enterprise of man, therefore the wife should, during life, have the same control over the joint earnings as per husband, and the right to dispose at her death of the same proportion of it as he”. They finally achieved success when the equal rights of wives in the matrimonial property were recognised. The Third National Women’s Liberation conference, in England in 1972, for the first time, explicitly demanded payment of wages for the household work.
In India, the debate on joint property rights of married women is not new though we still do not have joint matrimonial property law. Veena Verma did introduce a private member Bill in 1994 entitled The Married Women (Protection of Rights) Bill, 1994. Her Bill provided that a married woman shall be entitled to have an equal share in the property of her husband from the date of her marriage and shall also be entitled to dispose of her share in the property by way of sale, gift, mortgage, will or in any other manner whatsoever. But in 2010, even registration of the National Housewives Association as a trade union was denied as domestic work was treated as neither trade nor industry.
A step and suggestion
The United Progressive Alliance government, in 2012, had proposed to make it mandatory for husbands to pay a monthly ‘salary’ to their wives. The term ‘salary’ as monthly payment is indeed problematic as it indicates an employer-employee relationship, i.e., a relationship of subordination with the employer having disciplinary control over the employee. Wives do not deserve a master-servant relationship.
The United Nations’ Committee on the Elimination of Discrimination Against Women, in 1991, had recommended measurement and quantification of unremunerated domestic activities of women and their recognition in GDP so that the de facto economic contribution of women is highlighted. Matrimonial property laws do give women their share but only when the marital tie comes to an end. The time has come to insist that the work women perform for the family should be valued equally with men’s work during the continuance of marriage. If women become a little assertive, prenuptial marriage agreements can easily solve this problem with the insertion of the clause on wives’ right in husband’s earnings and properties being included in such agreements.
True empowerment of the electricity consumer
Did electricity consumers truly get “empowered” this December? This was the claim of the Union Power Ministry as the “Electricity (Rights of Consumers) Rules, 2020 was promulgated in December, almost two years since the declaration of universal electrification.
Issue of supply quality
Many States have not been able to provide quality supply, especially to rural and small electricity consumers. The enactment of consumer-centric rules does spark public debate that brings the rights of consumers to the fore. In this vein, the Rules lay an emphasis on national minimum standards for the performance parameters of electricity distribution companies (DISCOMs), without urban-rural distinction, especially for new connections, metering and billing. They also reiterate the need for automatically compensating consumers. But will these rules really lead to better supply quality?
It needs to be recognised that providing quality supply is primarily the responsibility of States and DISCOMs. Similar (or better) provisions by various State Electricity Regulatory Commissions (SERCs) already exist in the Standards of Performance (SoP) regulations. Such regulations have been in place for two decades in most States.
Lack of accountability
It is not because of a lack of rules or regulations that quality supply is not provided; rather, it is on account of a lack of accountability systems to enforce them. Unfortunately, neither these rules nor past efforts, be it through the draft National Tariff Policy, the proposed Electricity Act amendments, or various committee processes, address these accountability concerns.
Guarantee of round the clock supply is a provision that the Rules emphasise, which might be missing in State regulations. But there are doubts on the efficacy of automatic compensation payments towards such a guarantee. This is because the availability of power supply is inadequately monitored, even at 11 kV feeders, let alone at the consumer location. Hence, it is not clear how the failure of power supply is going to be recorded.
Moreover, such compensation will require serious commitment. For example, according to government reports, rural areas received about 20 hours of supply, in August 2020. Following existing regulations, this would entail compensation of hundreds of crores, but the actual amount paid adds up to just a few lakhs in each State for the entire year; even here it involves the resourceful few who could escalate their complaints to higher levels. This highlights not only the need for implementation of existing provisions in letter and spirit but also amending them with strong accountability provisions.
Further, the Rules, in few cases, dilute progressive mechanisms that exist in State regulations. Consider the case of electricity meter-related complaints. The Rules say that faulty meters should be tested within 30 days of receipt of a complaint. Compared to this, regulations that were published as early as 2004, 2007 and 2012 in Andhra Pradesh, Bihar, and Madhya Pradesh, respectively, say that such testing needs to be conducted within seven days.
A similar observation can be drawn from the suggested composition of the Consumer Grievance Redressal Forum. The Rules say that the forum — constituted to remedy complaints against DISCOMs as per existing laws and regulations — should be headed by a senior officer of the company. This is a regressive provision that would reduce the number of cases that are decided in favour of consumers, thereby eroding its credibility. State regulations in Delhi have different eligibility criteria, strictly mentioning that a DISCOM employee, who was in service in the last two years, cannot be appointed as a forum member. Maharashtra, Telangana and Bihar, among others, have the option of appointing a retired senior judicial officer or other independent members as the chairperson. It would be unfortunate if States now started amending their regulations to be in line with the Rules.
The Rules are not forward looking either, given the government’s intent to promote rooftop solar systems. They guarantee net metering for a solar rooftop unit less than 10 kW, but there is no clarity if those above 10 kW can also avail net metering. This could lead to a change in regulations in many States based on their own interpretations. Instead of providing clarity, it is likely that this provision will lead to more confusion. The possible litigation that follows would be detrimental to investments in rooftop solar units, and would discourage medium and large consumers to opt for an environment-friendly, cost-effective option.
Need for commitment
A useful way to protect consumers would be to nudge SERCs to assess the SoP reports of DISCOMs and revise their regulations more frequently. Also, SERCs should organise public processes to help consumers raise their concerns. DISCOMs could be directed to ensure automatic metering at least at the 11 kV feeder level, making this data available online.
The Forum of Regulators — a central collective of SERCs — could come up with updated model SoP regulations. The Central Electricity Authority of India could be directed to collect supply quality data from DISCOMs, publicly host them on online portals and prepare analysis reports. Such efforts need to go beyond the quality of information that is currently hosted on portals such as the National Power Portal. Central agencies have taken proactive efforts to ensure regular tariff revision. The central government could disburse funds for financial assistance programmes based on audited SoP reports.
With a focused one-time effort, electrification drives could provide connections across the country. But ensuring round the clock supply will require continuous efforts. We noted that without accountability, consumer compensation is meagre. The official response to this is the many ‘ifs and buts’ in the implementation of regulations. The enactment of the new Rules will not change this status quo. Reducing the ‘ifs and buts’ that delay or deny justice is what governments, DISCOMs and regulators need to jointly work on. They should demonstrate the commitment and the will power to implement existing regulations.
Defending liberty against political prosecution
One of the oldest, most pernicious and widespread forms of abuse of state power in India involves the police and enforcement agencies selectively targeting political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison them, ostensibly on grounds unrelated to their ideology or politics, while sparing comparably placed supporters and friends of rulers of the day.
As a recent example, the November 27, 2020 Supreme Court judgment granting TV anchor Arnab Goswami bail says, not without considerable irony because of the personality involved, “The specific case of the appellant [Arnab Goswami] is that he has been targeted because his opinions on his television channel are unpalatable to authority.” Scores of others are currently so targeted. Many, not as fortunate as Mr. Goswami to be quickly bailed out by the top court, are languishing in prison in inhuman conditions. Is this use of state power legally permissible? Is there no escape for victims of such abuse of state power? Is their only remedy bringing an action for wrongful prosecution years later — if they are acquitted and after suffering through many years of process as punishment? Or is there a legal remedy for nipping this evil in the bud, at the very outset, to protect the life and liberty of the accused?
Separating two legal issues
The problem is that the illegality involved in this type of prosecution is not self evident. At first glance, the prosecution appears legally kosher — acting on information about legal infractions, the police pursue the accused as per law. The illegality becomes plain when two legal questions are clearly distinguished and separated: first, the legality of the exercise of prosecutorial discretion in the selection of the accused for being investigated and prosecuted; and second, the merits of the criminal case filed against them. The two are independent legal issues and should not be wrongly conflated.
On the first question, the applicable legal standard is that while the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law. The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds. The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.
In the words of then Chief Justice W. Rehnquist of the United States Supreme Court, “A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” (United States v. Armstrong (1996)). “Selective prosecution” is thus a constitutional claim asserted by defendants to assail the proceedings against them on the basis that they were selected for being prosecuted in violation of Article 14 because the grounds of selection are constitutionally prohibited and are arbitrary. When the choice of accused runs afoul of the Constitution, the entire criminal proceeding is vitiated, irrespective of the determination of the second issue, viz., whether the accused are convicted or acquitted on the charges brought against them. Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue., i.e., trial on the merits of the case. The theory is that the Constitution cannot be violated to uphold the law — such an approach would spell doom for the Constitution. The selective prosecution claim must be adjudicated as a threshold issue, with the prosecution being quashed at the outset of the criminal case if the claim is justified. In the context of this discussion, the constitutionally prohibited ground we are confronting in India is the political or ideological affiliation of the accused. It is an arbitrary ground that violates the Article 14 guarantee of equal protection of the law.
Common law jurisprudence
The United States Supreme Court has a long record of experience with the claim of selective prosecution relevant to us as it is based on American equal protection jurisprudence to which our own Article 14 traces its roots.
In Yick Wo v. Hopkins, the United States Supreme Court said some 135 years ago (in 1886) that to punish some persons for “what is permitted to others as lawful, without any distinction of circumstances [is] an unjust and illegal discrimination”. The Court said further, “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is …within the prohibition of the Constitution.” Chief Justice William Rehnquist said in Armstrong, “A prosecutor’s discretion is subject to constitutional constraints… One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment… is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification”…. Justice John Paul Stevens said in the same case, “the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored… For that reason, it has long been settled that the prosecutor’s broad discretion to determine when criminal charges should be filed is not completely unbridled….”
Failure of Indian courts
Our courts have not recognised selective prosecution as an independent claim because of the erroneous assumption that the lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted. Thus, for example, the 2018 Report of the Law Commission on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted. Remedy after acquittal comes far too late, well after a brutal and long drawn out criminal justice process that upends the lives of the victims. Also, the right against selective prosecution cannot be extinguished by conviction. Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings (even during the investigation stage) irrespective of the merit of the charges.
Importance of Goswami case
The judgment of Justice D.Y. Chandrachud in the Goswami case is crucial in this regard. It provides a much needed and long awaited legal opening to strengthen the recognition and use of the selective prosecution claim in India to counter politically coloured prosecution unleashed by the state and defend our liberty. In addition to acknowledging Mr. Goswami’s claim that he is being targeted for opinions he holds and expresses, the judgment says, “Courts should be alive to… the need …of ensuring that the law does not become a ruse for targeted harassment …The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law”. The Goswami judgment also quotes the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.” To strengthen the protection of civil liberty, equality and democracy, it is time our courts — at all levels — recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.
Also read the interview published on the Hindu same day on Are courts encroaching on the powers of the executive?
A new framework around caste and the census
About the Census
The synchronous decennial Census going back to the colonial exercise of 1881 has evolved over time and has been used by the government, policy makers, academics, and others to capture the Indian population, its access to resources, and to map social change. However, as early as the 1940s, W.W.M. Yeatts, Census Commissioner for India for the 1941 Census, had pointed out that, “the census is a large, immensely powerful, but blunt instrument unsuited for specialised enquiry”.
This point has also surfaced in later critiques offered by scholars who consider the Census as both a data collection effort and a technique of governance, but not quite useful enough for a detailed and comprehensive understanding of a complex society. As historian and anthropologist Bernard Cohn had demonstrated, the Census may in fact produce an imagination of society, which suggests the epistemological complexities involved.
While the usefulness of the Census cannot be disregarded, for instance with regard to the delimitation exercise, there is a lack of depth where some issues are concerned. In this context, the discussion around caste and its enumeration have been controversial. Since Independence, aggregated Census data on the Scheduled Castes and Scheduled Tribes on certain parameters such as education have been collected. With demands to conduct a full-scale caste census gaining traction over time, some have seen the inclusion of broader caste information as a necessity to capture contemporary Indian society and to understand and remedy inequalities, while others believe that this large administrative exercise of capturing caste and its complexities is not only difficult, but also socially untenable. Following decades of debate, the Socio-Economic and Caste Census (SECC) was conducted in 2011 and took a few years to complete; this was a distinct exercise from the Census of 2011. The SECC, which collected the first figures on caste in Census operations since 1931, is the largest exercise of the enumeration of caste. It has the potential to allow for a mapping of inequalities at a broader level.
The main concerns
It would be disingenuous to ignore the emotive element of caste and the political and social repercussions of a caste census. There have been concerns that counting caste may help solidify or harden identities, or that caste may be context-specific, and thus difficult to measure. These discussions along with various counterarguments are not new. Commenting on the 1941 Census, Census Commissioner Yeatts observed that, “Thanks to the acute interest in community figures, practically all communities this time were census-conscious and took pains to see that their houses were in the list and that they themselves were counted.” In discussions around caste, scholars such as Nicholas Dirks and Cohn have demonstrated that the Census had the effect of marking out caste and community in the forms we see today.
The Census and the SECC have different purposes. Since the Census falls under the Census Act of 1948, all data are considered confidential, whereas according to the SECC website, “all the personal information given in the Socio Economic Caste Census (SECC) is open for use by Government departments to grant and/or restrict benefits to households”. The Census thus provides a portrait of the Indian population, while the SECC is a tool to identify beneficiaries of state support. This difference is significant since it influences not only the methods of collection but also the use and potential for misuse of data.
A road map
What is needed then is a discussion on the caste data that already exists, how it has been used and understood by the government and its various departments to grant or withdraw benefits, and also its utility for the important academic exercise of mapping social inequalities and social change. Linking and syncing aggregated Census data to other large datasets such as the National Sample Surveys or the National Family Health Surveys that cover issues that the Census exercises do not, such as maternal health, would be significant for a more comprehensive analysis, enabling the utilisation of the large body of data that already exists. This linking of the Census with the National Sample Survey data has been suggested in the past by scholars such as Mamta Murthi and colleagues . Statisticians such as Atanu Biswas point out that Census operations across the world are going through significant changes, employing methods that are precise, faster and cost effective, involving coordination between different data sources. Care must however be taken to ensure that digital alternatives and linking of data sources involving Census operations are inclusive and non-discriminatory, especially given the sensitive nature of the data being collected.
Time lag and planning
Apart from themes specific to enumerating caste, there are other issues that the Census and the SECC in particular face. The first relates to the time lag between each Census, and the second to the delay in the release of data. The first of these is inherent in the way the Census exercises are planned. The second, however, also has important repercussions to understanding social change since data may remain un-released or released only in parts. Nearly a decade after the SECC for instance, a sizeable amount of data remains unreleased.
While the Census authorities present documents on methodology as part of a policy of transparency, there needs to be a closer and continuous engagement between functionaries of the Census and SECC, along with academics and other stakeholders concerned, since the Census and the SECC are projects of governance as well as of academic interest. Before another SECC is conducted, a stocktaking of the previous exercise, of what has been learnt from it, and what changes are necessary, beyond changing exclusionary criteria for beneficiaries of state support, are crucial to enable the Census to facilitate effective policy work and academic reflection. Concerns about methodology, relevance, rigour, dissemination, transparency and privacy need to be taken seriously if this exercise is to do what it was set up to do.
A pick between dark politics or collective resistance
All politics is a struggle for power; the ultimate kind of power is violenceC. Wright Mills
Donald Trump’s drive to upend a legitimate election has shaken faith in the functioning of democracy worldwide. When a president of a country himself condones the rioters or calls them “patriots”, a grim reality awaits democracy in the face of the pervasive political polarisation ripping apart the very political fabric of a nation. Politicians across the globe sink to new levels of unwarranted incitement of a malleable public, a disastrous and politically debasing tendency of constitutional democracy.
History as a pointer
The loss of faith in the ruling elite points towards a disturbing future. The long and cyclic dark history of civilisation, of wars and violence, of religious fanaticism and irrationality is a loud indication of the failure to model society on rational principles. Our inherently dialectical history confirms the simultaneous birth of opposing forces at the very moment of assertion of any “truth”. For example, the trajectory of liberal democracy evolving into totalitarianism is evidently present in the brute forces of Italian fascism or German Nazism, two striking examples of the birth of vulgar nationalist fervour and racial superiority.
The shock of Capitol Hill
In the wake of the debacle on Capitol Hill, the world awakes to the reality of the scourge of violence within democracy, rousing a serious national debate on what comprises aggression, who perpetuates it, and why. It is imperative to halt the runaway course of democracy towards an environment increasingly subsumed in the violence of fear and hatred, an overwhelming plague in any civil society. Breaking, therefore, through the intellectual vacuity of the official discourse and coming to grips with the history of electoral violence we see that what happened on the Potomac is nothing new in the long history of racist and electoral violence.
But it is not Mr. Trump who is solely responsible. The people are as much to be blamed. Jason Brennan, in his valuable and bracing book, Against Democracy, makes the contrarian conclusion that democratic participation promotes human beings to forget common sense and common politesse. Voters, as he puts it rather uncharitably, are “biased, ill-informed football hooligans” who “can present arguments for their beliefs, but cannot explain alternative points of view”. Along with them are the “hobbits”, a section that lacks fixed strong views on political matters. These two categories have their antithesis in the “Vulcans” who, Brennan argues, “think scientifically and rationally about politics”. Nazism, Trumpism or Hindutva are outstanding examples of this syndrome and the analogy fits in aptly with the credentials of the demonstrators in Washington DC, the “superbiased” who mindlessly fall in line with the manifesto of the ruling dispensation.
Philosophical democratic theory is, therefore, rather perplexing. One aspect is the idolised view of democracy as an inimitably just form of government where people have the right to equal share of political power that empowers the people. However, judging by the history of violence, this could be an absolutely off the mark argument within real-world politics. It only shows that political participation has the potential of making people more irrational, prejudiced and mean. It pulls apart, impedes the social order and creates antagonists of civic order. A higher form of life that democracy promises seems to evade the public.
The debatable questions, therefore, would be: Does democracy leave you smart and active, or dumb and uncivilised? Does it give us a broad outlook or is it selfishly limiting to one’s immediate needs? Does it not make people live in a world of delusion and deceit expediently passing the blame on to the Left or the “professional anarchists” responsible for violent acts of arson and loot, while thousands of protesters sustaining the powerful state apparatus are labelled as “peaceful” or as “patriots”. Death, pain and physical injury of people fighting back for civil liberties and human rights are of no consequence.
The power and brutality of state violence therefore stands legitimised while justifiable or innocent violence accompanying demonstrations against racism or police ferocity result in ruthless consequences. The nightmare of history indeed, brings us face to face with sinister times that impel the need to oppose the offensive right-wing narrative that discourages dialogue, economic welfare and freedom of expression. The erosion of egalitarianism and freedom through unprecedented challenges from anti-humanist forces pushing democratic institutions to the brink of failure is effectively in operation globally.
At the irreducible moment of confronting the nightmare of history, we have a choice before us. Either we accept the politics of ethnic intolerance, inequality and violence or arouse within us the unfaltering urge to resist the status quo. In the absence of activism, people are bound to fall prey to irrationality, resentment, xenophobia and the inexorable yearning for fear-inducing power. Shockingly, the right-wing fringe element anywhere in the world, America or India, seem untouched by the state brutality on the innocent and the marginalised.
Recognising the failures of the past while retaining hope for the future, we need to develop a critique of violence within democracies that is adequate to the times. Understandably, there is always a political struggle basic to the recognition of evident and hidden forms of injustice and violence that make people mindful of it, deliberate on it, and act. These are the “political beginnings” that Hannah Arendt optimistically spoke of in her perennially relevant book, Men in Dark Times. To her, the collective power of the people mattered more than the power of the state, but only when the struggle is against authoritarianism and bigotry, not when the masses begin to prop a fascist disposition.