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Current Events 25 April 2016



25th APRIL 2016 



CJI Thakur's emotional appeal to Modi to protect judiciary

Breaking down several times in his half-hour speech addressed directly at Prime Minister Narendra Modi present on the dais at the Annual Chief Ministers and Chief Justices Conference, Chief Justice of India, Tirath Singh Thakur, launched a scathing attack on government inaction, squarely blaming the Centre for stalling appointment of judges to the High Courts. He also blamed the Centre of doing nothing to increase the number of courts and judges in the country, thus denying the poor man and under trial prisoners their due of justice.

The Chief Justice asked what the point of ‘Make in India' was and inviting foreign direct investments when investors are increasingly doubtful about the timely delivery of justice.

He said there are 434 judicial vacancies in the High Courts waiting to be filled up as of date.

 "This is thanks to the long time the NJAC case took to be decided," Chief Justice Thakur said, referring to the year-long litigation in the Supreme Court over the government's attempt to replace the Supreme Court Collegium with the National Judicial Appointments Commission (NJAC). Judges' appointments to the High Courts and the Supreme Court had remained frozen as the court battle had raged on.

"Once the litigation was over, a concerned collegium cleared pending proposals for judicial appointments in six weeks. We had already appointed 54 High Court judges whose cases were pending with us before the NJAC case. Fifty per cent of the proposals were turned down by us as we did not want the slightest blemish on the name of the judiciary. But 169 proposals are still pending with the government till now... " Chief Justice Thakur said.

"Now how long will you take to process these proposals? ... How long? When jails are overflowing... In Allahabad High Court, 10 lakh cases are pending."

Chief Justice Thakur, in his scathing criticism of the government's inaction, said the Centre chose not to lift a finger to help reduce the "impossible burden" judges carry and aid the cause of justice delivery despite a Law Commission report in 1987 warning that the country is slipping into a crisis where the ratio of the number of judges to the population is grossly inadequate. Its report had said that there were only 10 judges to a million population when there should be at least 50 judges per 10 lakh population.

He read out a letter from his predecessor, Chief Justice of India (now retired) Altamas Kabir, who had to then Prime Minister Manmohan Singh on February 21, 2013, requesting the latter to take steps to increase judges' strength over a period of five years to at least 50 judges per million.

Chief Justice Thakur then read out Mr. Singh's reply, in which the latter acknowledges that judges' numbers have to be increased manifold, but ends his letter by passing the blame to the State governments for not taking the "initiative."

The Centre says the States should take the lead and the States say Centre should take the lead. He said that at least five crore cases are filed every year and judges dispose of only two crore.

Noting that population has increased by over 25 crore since 1987, Chief Justice Thakur said the only solution to this "extraordinary situation" was to bring back proven judges from retirement in a bid to dispose of cases which are more than five years old.

He noted how setting up of Commercial Courts was close to Prime Minister Modi's heart but questioned its viability. He said merely naming an existing court as Commercial Court would only further delay the process of justice for the ordinary litigant.

Mr. Modi recounted how as Gujarat Chief Minister he had attended the same conference several times and heard speeches. He said how speakers in the conference had elbowed aside his suggestion for judges to reduce their annual holidays to help reduce pendency.

The Prime Minister said judges and the government should sit together and work for a more efficient tomorrow rather than dwell in the past and what was said in 1987.

He said the ordinary citizen has full faith in the judiciary and the government would not let that faith in the judges falter. He blamed the flood of archaic laws that fill up the statute books, faulty or vague drafting of laws and their multiple interpretations by various courts as reasons for prolonged litigation.


Mallya's passport revoked in first step to bring him back

The Ministry of External Affairs announced that it has revoked the passport of Vijay Mallya, the wanted boss of Kingfisher Airlines, starting the process of bringing him back to India.

"Having considered the replies filed by Shri Vijay Mallya to the show cause notice, facts brought by Enforcement Directorate, and Non Bailable Warrant under the PMLA Act, 2002 issued by Special Judge Mumbai, the MEA revoked the passport of Shri Vijay Mallya under Section 10(3)(c) and 10(3)(h) of the Passports Act, 1967," MEA spokesperson Vikas Swarup tweeted.


‘CNG more harmful for environment than diesel'

Citing an expert committee report on fuels, the State government recently told the Gujarat High Court that CNG would prove to be more harmful to the environment than diesel ‘as CNG engines emit more greenhouse gases than diesel'.

In its affidavit filed before the High Court, the State also expressed apprehension over converting all commercial as well as public transport vehicles running on diesel into CNG-run, stating that it would have major financial implications.

The affidavit came as the government's reply to the court, which is hearing a PIL seeking the conversion of all diesel vehicles into CNG-run vehicles to reduce air pollution in the State.

In the affidavit, the State government cited the 2002 Mashelkar Expert Committee report to argue that CNG was not a solution. "As observed in the Mashelkar Expert Committee report on Auto Fuel Policy in India, CNG vehicles emit 20 per cent more greenhouse gases per mile when compared to diesel vehicles. From the perspective of global warming, the decision to switch to CNG from diesel is a harmful one," the affidavit said, quoting the report.

"A CNG vehicle emits 80 per cent particulate matter and 35 per cent less hydrocarbons. However, the output of carbon monoxide is over five times more than diesel," stated the affidavit.


National corridor body plan shelved

The Centre has decided to shelve its plan to set up a National Industrial Corridor Authority (NICA), the proposed nodal body to oversee work relating to all national ‘industrial corridors', in the face of hurdles in implementation.

The Authority has been put on the back burner due to the delay foreseen by the Prime Minister's Office and the Cabinet Secretariat in getting Parliamentary approval for it to be conferred ‘statutory' status on the lines of the National Highways Authority of India. The plan to set up NICA was announced by Finance Minister Arun Jaitley in his maiden Budget speech in July 2014.

A fresh Cabinet note has been sent recently to the Ministries concerned, seeking comments on a plan to make the Delhi-Mumbai Industrial Corridor Development Corporation (DMICDC) the coordinating body for corridors, to move ahead with proposals relating to corridors in the works, government sources said. Making DMICDC the coordinating agency only needs a Cabinet nod, it is learnt, and is easier than obtaining Parliamentary approval for NICA.

The Centre's initial plan was to go in for a Constitutional amendment and ensure passage of a new law - a ‘NICA Act' on the lines of ‘NHAI Act' - in Parliament. The aim was to grant NICA overarching powers including primacy over State bodies on all aspects of ‘industrial corridors' thus allowing it comprehensive operational freedom.

The Constitutional amendment was to remove doubts on whether the topic ‘industrial corridor' falls under the ‘State List' or ‘Union List' of Constitution. Currently, ‘industries' form part of the State List, except those mentioned as ‘industries' under the Union List -- such as those so declared by law, for ‘war', ‘defence' and ‘in public interest'. The amendment was proposed to ensure that all matters pertaining to ‘national industrial corridors' come under the Union List and this would in turn prevent conflicts with State authorities and ensured better Centre-State coordination for expediting proposals, the sources said.

The earlier plan was also to subsume the DMICDC and DMIC Project Implementation Trust under NICA. But this too has been put off due to complications involved in transferring to NICA the 26 per cent stake of Japanese government-owned Japan Bank for International Cooperation in DMICDC, according to sources. Besides DMIC, other proposed corridors include those linking Amritsar-Kolkata, Bengaluru-Mumbai, Chennai-Bengaluru, and Visakhapatnam-Chennai. As per the new plan to make DMICDC the nodal agency, its head will have the powers to approve proposals relating to corridors.

Meanwhile, discussions are on to get the NICA registered as a Society under the Societies Act (without any statutory status) so that it can at least start functioning without delay.


Ministry asks RBI to examine Workers' Bank proposal

The Labour Ministry has asked the Reserve Bank of India (RBI) to form a panel headed by a former Deputy Governor of the central bank to look into a proposal of creating a Workers' Bank using Employees' Provident Fund (EPF).

The proposal was mooted by the trade unions about a decade ago and has been discussed by Labour Ministry and Employees' Provident Fund Organisation (EPFO) for several years now.

In 2004, the Congress-affiliated Indian National Trade Union Congress (INTUC) had first submitted a theme paper to the government on setting up ‘Workers' Capital Trust' to improve the earnings of Employees' Provident Fund Organisation (EPFO) by investing its corpus in various instruments.

The idea was modelled on similar experiences in countries like Canada, Netherland, Switzerland and South Africa where a collective pension fund system invests worker's savings in equities of domestic and global markets.

As on 31 March 2015, EPFO's total corpus stood at Rs.6.34 lakh crore. Various committees set up to review the proposal had suggested that EPFO should concentrate on its core activities and were not in favour of the Workers' Bank. However, the idea was revived after the National Democratic Alliance (NDA) government took charge in May 2014.


ONGC to drill 17 exploratory wells for shale gas, oil

State-owned ONGC Limited is planning to explore as many as 17 shale gas and oil wells in both east and west coasts with an investment of around Rs.700 crore.

According to the minutes of a recent meeting of the Expert Appraisal Committee (EAC) of Ministry of Environment and Forests, the PSU sought the ministry's nod to prepare Terms of Reference for exploring the wells.

A senior official of the PSU said this is the first time that the oil and gas company has taken up shale gas exploration in such a big scale. Also, it first time that it has taken up shale gas exploration in the Krishna-Godavari basin.

According to the minutes, ONGC sought permission for drilling 11 exploratory wells for shale oil and shale gas in Cambay basin at Mehsana, Ahmedabad and Bharuch districts of Gujarat, one well in Cauvery basin at Nagapattinam in Tamil Nadu and five wells in KG Basin at East and West Godavari districts of Andhra Pradesh.

Shale gas is the natural gas that is trapped within shale formations.


Centre to liquidate some loss-making undertakings

As it looks to contain public expenditure, the government is considering a proposal to liquidate some loss-making PSUs while protecting the interest of their employees who may be offered "lucrative" payouts.

It is understood that Expenditure Management Commission, formed in September 2014, recommended liquidating loss-making PSU by selling of assets such entities wherever possible.

The commission was given the task to review all matters related to central government spending, including suggesting space for increased developmental spending and reviewing the budgeting process and norms under the Fiscal Responsibility and Budget Management Act and suggesting ways to meet a reasonable proportion of spending on services through user charges.

Liquidation should be done in a manner that it does not hurt interest of employees and is a win-win for both government and the staff, sources added.

The government, sources said, may provide for lucrative one-off sum toward pension payments for the staff of those loss identified loss making companies.

As per the latest government report, there are 77 loss-making PSUs at the end of March last year with a total aggregate loss of Rs 27,360 crore.

Some of the companies include, Bharat Gold Mines, Tannery and Footwear Corporation of India, Cycle Corporation of India, Mining and Allied Machinery Corporation, National Bicycle Corporation of India, Bharat Process and Mechanical Engineers, Weighbird India and Bharat Brakes & Valves.

Finance Minister Arun Jaitley in his Budget 2016-17 speech had said NITI Aayog will identify Public Sector Units for strategic sale.

The Department of Disinvestment has been renamed DIPAM. The government aims to collect Rs.56,500 crore through disinvestment in PSUs this fiscal, as per Budget 2016-17.


Keep it parliamentary

With the second part of the Budget session set to commence on April 25, the government's focus will be on the GST bill, along with the Bankruptcy bill, and amendments to the Factories Act.

The Bankruptcy Bill seeks to establish a new framework for quick resolution in cases where there is a default by a borrower. It creates a few new entities: information utilities to store data on debt and defaults, insolvency professionals to manage a defaulting company during the resolution process, insolvency professional agencies which will accredit and regulate the insolvency professionals, and a regulator. In case of a default, an insolvency professional, who will try to create a resolution plan, will be appointed. If a resolution plan is not approved by 75 per cent of lenders, the company will be liquidated. This Bill is being examined by a joint select committee of Parliament which is expected to give its report this week.

The fate of the Constitution (122nd Amendment) GST Bill depends on whether the government can build a consensus with the Congress party. There were three main objections raised by the Congress: abolition of the 1 per cent tax on inter-State movement of goods, the creation of a dispute resolution body over the GST Council, and setting a cap on the tax rate. The Arvind Subramanian Committee has also recommended the removal of the inter-State tax, and the government may agree. The Parliamentary Standing Committee that examined the earlier version of this Bill had pointed out that a judicial dispute resolution body may impinge on the fiscal autonomy of legislatures, and had recommended that the provision be removed. The current Bill adheres to this recommendation.

The demand for a cap on the tax rate is interesting. Constitutions usually provide a broad framework for laws to be made by legislatures. Except for professional tax, the Indian Constitution does not fix a limit on any other tax, including the various taxes that the GST will replace. However, given the frequent increases in excise duties on petroleum products through executive notification, there is a case to limit such powers. The government could address this issue by specifying that the rates be set only by legislatures.

The other major legislation is the Finance Bill. Other than changes in various taxes, this year the Finance Bill proposes some structural changes in other laws. For example, it amends the Reserve Bank of India Act to introduce a monetary policy committee. This raises the question whether the Finance Bill can be classified as a money bill. The Constitution defines money bills as those having "only" certain items related to taxes, government borrowings and government spending. Given the other provisions, the Finance Bill may need the consent of the Rajya Sabha too (unless the government drops these provisions when the Bill is discussed in the Lok Sabha).

Over 99 per cent of the Budget will be passed without detailed discussion in Parliament. Indeed, this is part of a longer term trend. In the last decade, rarely has the Lok Sabha discussed more than 10 per cent of the Budget. Part of the decline in the discussion can be attributed to the time spent on this subject. In the 1980s, the Budget was discussed for 100-120 hours every year; this figure has declined to 20-40 hours since the mid-1990s.

As an aside, the fact that this is a new session and not the second part of the Budget session carries a story. The first part was adjourned on March 16, with the announcement that the Houses will meet again on April 25, but the session was formally closed just before the end of March. This was done to enable the passage of the Uttarakhand Budget by executive order of the Central government after President's Rule was imposed in the State. The Constitution allows Parliament to pass the budget of a State if it is under President's Rule. It permits the Central government to do so if Parliament is not in session. Rather than call Parliament for a day's sitting, the government chose the latter route. This is not the first instance of using the flexibility of Parliament sessions by governments to suit their ends.

In 2008, the United Progressive Alliance government chose to continue the Monsoon session with breaks, until a couple of days before Christmas, rather than have a separate Winter session. The purpose was to use a rule that a no-confidence motion cannot be moved twice in the same session. Last year, the Budget session of the Rajya Sabha was curtailed to enable the reissuance of the land acquisition ordinance. Such tactics used by various governments to bypass parliamentary scrutiny need to be addressed. One way is to fix a calendar at the beginning of the year, with changes permitted only for an emergency sitting of Parliament.


Laws that make us human

The Maharashtra State Assembly recently enacted the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act of 2016. As the title suggests, the purpose of this law is to prevent and punish the continuing community-driven practice of social boycotts. The Act provides 15 examples of "social boycott", which include obstructing individuals from observing religious practices or customs, severing social or commercial ties, causing intra-community "discrimination", expulsion from the community, and so on. Persons who directly engage in social boycott, instigate others to do so, or participate in the deliberations of any meeting organised with the purpose of imposing a boycott may be penalised under the law.

The focus of the Act is clear: it is directed against caste panchayats which often function as community-based parallel forums of justice, and whose diktats are invariably directed against recalcitrant individuals who have been deemed to transgress the bounds of caste or community morality. Interestingly, therefore, the Act specifically penalises causing discrimination among the members of a community on the basis of "morality, social acceptance, political inclination, [or] sexuality."

Soon after Independence, in 1949, the State of Bombay passed a law called the Bombay Prevention of Excommunication Act, which outlawed the practice of excommunication within religious communities. The constitutionality of this Act was challenged by the "Dai", or head, of the Dawoodi Bohra community, who argued that by curtailing his powers of excommunication, the law interfered with his religious freedom.

In 1962, a divided Supreme Court struck down the Act. The judges in the majority held that the practice of excommunication was an essential tool for maintaining community discipline and cohesiveness, and consequently, was protected by Article 26(b) of the Constitution, which guaranteed to all religious denominations the right to manage their own affairs in matters of religion.

However, in a powerful dissenting opinion, Chief Justice B.P. Sinha observed that, on the contrary, the Excommunication Act fulfilled the constitutional mandate by seeking to guarantee "individual freedom to choose one's way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief... it is also aimed at ensuring human dignity". Specifically linking the prohibition of excommunication with the constitutional directive for the abolition of untouchability (under Article 17 of the Constitution), he held that the purpose of the Act was to outlaw such practices of outcasting and social ostracism, which deprived the individual "of his human dignity and of his right to follow the dictates of his own conscience".

The correctness of the majority opinion in the Dawoodi Bohra case has been questioned, and a petition to reconsider it has been pending in the Supreme Court since 1986. As the difference of opinion among the judges reveals, however, the issue is a fraught one. Undeniably, the Constitution guarantees religious freedom to communities, and also guarantees the freedom of association. At the same time, however, the Constitution also recognises that punitive community action can severely harm individual freedom, dignity, and access to basic public goods. For this reason, it curtails the power of groups in various ways. Apart from the prohibition of untouchability, the Constitution guarantees non-discriminatory access to "shops, public restaurants, hotels, and places of public entertainment" (Article 15(2)). In legal language, this is known as the "horizontal application of rights": that is, the Constitution grants individuals rights not merely against the State, but also against other individuals (and groups).

The historian Anupama Rao records an instance from 1856, where the Bombay government denied admission to a Christian Mahar convert into a public school on the ground that caste Hindus did not wish to "associate" with a Mahar student. After sustained protests lasting a few decades, towards the end of the 19th century, Dalit students were allowed to attend public schools, but were directed to sit separately in a verandah outside the classroom. They were also barred from accessing the common water supply.

The struggle intensified through the course of the early decades of the 20th century and reached its climax in the late 1920s, with B.R. Ambedkar's famous Mahad satyagraha directed towards opening up access to community water tanks that had been barred to Dalits. Simultaneously, he also launched a movement for entry into public temples, basing his claims on the right to an equal standing within the community. As he famously argued, "the issue is not entry, but equality."

Ambedkar proposed an anti-boycott law which would specifically prohibit the practice of social boycotts. Although the colonial government did not take him up on this, a few of Ambedkar's proposals found their way into the post-Independence Protection of Civil Rights Act of 1955.

The Maharashtra law is an important first step, that carries forward the judicially-aborted goals of the 1949 Excommunication Act, and the rarely-used Protection of Civil Rights Act. The devil, of course, will now lie in the implementation.


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