Open Forum

New Delhi, 9 June 2021

Courts’ Prudence

GOVT MUST HEED, FAST

By Dhurjati Mukherjee

The pandemic has induced both good and bad news in the country’s judiciary. On the one hand, the second catastrophic Covid wave has led the courts to play a pro-active role and make the Executive accountable and answerable. On the other, the judiciary finds itself overburdened and the number of pending cases have hit an all-time high.

The second wave of Covid-19 particularly has seen the Supreme Court as well as many High Courts take the initiative to direct governments to put their house in order, be it frightening shortage of oxygen or hospital beds or a distorted vaccination policy. Some have been harsh, to say the least calling the callousness as ‘criminal negligence’ or that “some people need to be charged with manslaughter. Undoubtedly, it’s the judiciary, which has given hope to people that skewed working and policies will get rectified under its watchful eye. Remember, it was the apex court and not the Centre which suggested the constitution of the 12-member National Task Force (NTF) to devise a scientific formula for rational and equitable allocation of oxygen to states, audit utilization and suggest means to augment production.

On the other side is the distressing picture, that of rising number of pending cases in courts as well the inability of people to get justice within a reasonable period of time. The pendency of cases have gone up over 4.4 crores across the country. In a recent study of judicial pendency, commissioned by the Department of Justice through the Administrative Staff College, revealed that the average waiting period for trial in lower courts is around 10 years and 2-5 years in High Courts. 

Recently, Chief Justiceof India N V Ramana has unveiled an ambitious plan  to set up a National Judicial Infrastructure Corporation (NJIC) to build “comprehensive, self-contained, all-inclusive and modern court complexes across the country to augment judicial infrastructure.” According to him this would aid overcome the poor infrastructure, which “was proving to be a major stumbling block in delivery of justice”. The proposal is timely but much will depend on what final shape it takes.

At the same time, his predecessor S.A. Bobdehad issued a slew of directions to the Centre for expediting appointment of judges besides exercising its extraordinary powers to permit appointment of retired judges as ad hoc judges of High Courts to clear the massive backlog of 57 lakh cases. This was while taking suo motu cognisance of 40 per cent vacancies pending in High Courts. Against the sanctioned strength of 1080 judges, there are only 664 judges thus 416 posts are lying vacant. As such, a dormant provision of the Constitution, Article 224A, for appointment of ad hoc judges to deal with the massive backlog has been taken.

The development came in the backdrop of frequent irritants between the Centre and the top court. While the Supreme Court collegium has often criticised the Centre for delaying appointments, the government had passed back the buck to it, saying recommendations were being made considerably late beyond the six month period as per the MoP (Memorandum of Procedure). The decision for ad hoc judges should have been taken long back so as not to allow the pendency of cases to increase considerably. However, induction of say retired judges may not necessarily bring about desired changes in the judicial system.

Early this month, the Supreme Court Bar Association (SCBA) wrote to CJI Ramana to consider lawyers practicing in the apex court for appointment as High Court judges. It justifies this on the grounds that these lawyers have “vast experience and best exposure in dealing with all kinds of issues relating to civil, criminal, constitutional, commercial law, etc.”It regretted that such lawyers are “rarely considered for elevation by the High Court collegium as they don’t regularly practice before the High Court” and that while professionally they are more meritorious than their High Court colleagues, they lose the opportunity for being considered.

Other than filling up vacancies, development of adequate infrastructure, which is woefully missing, begs attention. For example, some additional benches of High Courts need to be created and this has to be taken up by the States, though there are financial and inadequate manpower constraints. Lower courts in many States too need special attention too.

Besides, governments aren’t giving adequate attention to modernising these courts to ensure quick adjudication of cases, both criminal and civil cases. Lately, with courts going into virtual mode during the pandemic, large number of lawyers are finding it difficult to change mindsets and adapt to online system. Suggestions such as training of judges and lawyers, augmentation of video-conferencing systems in trial courts, especially in rural areas with links to litigants, mobile vans establishing connections between courts and rural populations, are some which have been thrown up.

Worse, the legal process is long-drawn and establishment of conciliation centres or more fast track courts is not on radar. It is no secret that justice to be deliveredtakes a decade if not more, by which it would be too late, the sheer objective getting lost. The lengthy process, also hurts the lower sections of the society as it impacts their livelihood-- lawyer’s fee, innumerable trips to the courts and precious wastage of time, among others. Perhaps, the apex court could consider bringing about an order wherein all cases must be time-bound-- settled say within a span of three years and, in special cases, an extension may be given by another year.

While the concept of fast track courts has been a welcome change, the numbers are inadequate in the backdrop of rising burden of cases, specially at the sub-divisional and district levels. More such courts need to be set up and State governments must ensure funds for these. Recall the first fast track court was set up in 2000. But not much headway has been made as the money released by Centre is inadequate and so also the State governments priorities to have regular staff.

The inordinate delay in settlement of cases is a significant hindrance to the judiciary’s rating in the global system. And CJI Ramana seeks to make requisite amends. In a two-day virtual conference with High Court judges, he stated: “I am of the firm belief that unless infrastructure is strengthened, it is unfair to expect courts, particularly lower courts, to do miracles and increase the pace of justice delivery. Both quality and quantity of justice delivery can be improved only when support systems are strong enough to meet the challenges.”

While the saying ‘justice delayed is justice denied’ is well-known and oft-quoted, the critical changes for an efficient and timely system as desired must be taken up on priority. The second wave of the pandemic has seen truth being spoken to powers. Whether it will last and yield results, needs to be keenly watched.---INFA

(Copyright, India News & Feature Alliance)

Political Diary

New Delhi, 8 June 2021

Governor: Centre’s Chaprasi

NEED TO LAY DOWN NEW RULES

By Poonam I Kaushish

Whoever said different political strokes for different political folks was dead on. Specially when it comes to the high Constitutional office of the Governor. Wherein handpicked loyalists do whatever their mai baaps sitting on India’s Raj gaddi want. Governance, after all is one big nautanki which has rewritten the basic time-honoured rules of authority and turned democracy on its head. Bend them, break them, who cares!

Alas, the continuing acrimony since July 2019 being played out in West Bengal and Delhi between Governor Jagdeep Dhankhar and Chief Minister Mamata’s TMC has once again brutally put the Governor’s role under the microscope.  In its latest tirade it has accused Governor of appointing relatives as officers on special duty in his personal staff. An allegation Dhankhar denies, instead alleges it’s to divert attention from the “grim and alarming law and order situation” in the State following post-poll violence.

Asserted he, “I'd like to know what the State Administration is doing?  Violence is increasing and the State is “plagued with rampant violence….and ego prevails over public service.” In retaliation the TMC has demanded Dhankhar's dismissal to President Kovind stating that the Governor is not satisfied being in the Raj Bhavan and is interested more in politics. Modiji should field him in an election and make him a Minister.”

Taking another swipe Mamata wrote to Dhankhar asserting, “I had specifically advised you to refrain from surpassing the Chief Minister and Ministers and communicating-dictating to officials in excess of your power under the Constitution and directing them to attend before you….You are ignoring this advice.” Replied Dhankhar, “I am appalled that the Chief Minister should even be contemplating that the Governor has to obtain orders of the Government.”

Certainly, this tu-tu-mein-mein between two Constitutional posts is not the first or the last time. Call it déjà vu, either way Modi NDA’s is no different from National Front VP Singh’s 1989, Vajpayee’s 1999 nor UPA’s 2004-14 all have used, misused and debased the gubernatorial office to further their political agendas and got Governors to do at their bidding, ever ready to destablise the State, if desired by New Delhi. Most have no qualms of conscience in rubbishing it in personal or Party interest, overlooking the Constitution’s letter and spirit.

Expectedly, this new nadir has once again raised questions about a Governor’s role, qualifications and his Constitutional obligations and duties. Raising a moot point: Is he the Centre’s kathputli? Or, the keeper of the people’s faith as the Constitutional head of a State. Importantly, are there any rules to underscore some semblance, coherence and uniformity in gubernatorial actions? A charter of directions and guidelines?

Sadly, in a milieu dictated by opportunism and you-scratch-my-back-and-I-yours, all are past master in manipulating tactics reducing Raj Bhavans as extensions of their Party offices. Instances of Governors interpreting or ‘misinterpreting’ the rule book any way he wants, drawing his own conclusions based more often than not, on delusions so that he and his mai-baaps at the Centre could rule the roost are aplenty.

Consequently, a gubernatorial post is no longer decided on whether a person is a man of stature known for his integrity and objectivity, but whether he can be a convenient tool of the Centre, a chamcha. Specially in Opposition-ruled States where he runs the administration by proxy, playing the I-spy-game: petty politricking, gross interference, open partisanship at the Centre’s behest.

Sending for files, summoning Ministers and bureaucrats. To hear, entice, provoke and register the voice of dissent against the State Government to his political patrons in Delhi. Bluntly, make life hell for the Chief Minister at every step and use it as a springboard to return to active politics.      

Predictably, this has tossed out the ‘safety valve’ envisaged by the Constitution makers of who should be appointed Governors, manner of their appointment and their role. During Constituent Assembly debates leaders hoped that eminent individuals, preferably not those directly involved with politics should be appointed to this ‘exalted’ position.

Unsurprisingly, like its erstwhile predecessor Congress, the BJP has turned the conventions of a Governor always being a Governor on its Constitutional head whereby a Rajyapal  relinquishes office and returns to active politics. Instances are many: Mizoram Governor K Rajasekharan quit for active politics in Kerala. Karnataka ex-Chief Minister SM Krishna was appointed Maharashtra Governor and later India’s Foreign Minister. Ditto Sushil Shinde who relinquished Maharashtra Chief Ministership in November 2004 and was anointed Andhra Governor the same day. Two years later he re-entered active politics and within hours was sworn in as Cabinet Minister for Power and later Union Home Minister in  2012.

All seem to have forgotten that a Governor’s true function is not just to represent the Centre but, as the head of the State, to serve his people and fight their battles with the Centre, not vice versa. He has to bear in mind the overall national interest, not partisan Party interests at the Centre and be in tune with his own people.

The Constitution empowers him to influence the decisions of an elected Government by giving him the right “to be consulted, to warn and encourage” His role is overwhelmingly that of a “friend, philosopher and guide” to his Council of Ministers with unrivalled discretion. A lot more than those of the President.

As noted by Sarkaria Commission and endorsed by the Supreme Court, the Governor’s role is that of “a Constitutional sentinel and that of vital link between the Union and the State…Being the holder of an independent Constitutional office, the Governor is not a subordinate or subservient agent of the Union Government.”

Pertinently, the Commission made two weighty recommendations. One, the Governor should be appointed in consultation with the Chief Minister of the State. Two, his tenure of five years should not be disturbed, except in rare circumstances for “extremely compelling reasons”. But these lie buried.  

What next? Sadly, all lament the decline of the Governor office but continue to misuse and abuse it for personal and Party ends. Not only does it generate bad blood between Lilliputian politicians but in its wake denigrates the Constitution.

Governors need to remember that democracy means respecting the Constitution and upholding established conventions along-with realizing the essence of Constitutionalism is restraint and not confrontation. Time to introspect whether persons with a preference for extra-Constitutionalism and lack of restrain should be appointed or continued as Governors.

West Bengal is a lesson on the dangers of appointing political hatchet men to high offices which calls for fairness, uprightness and adherence to Constitutional values and conventions. Our leaders need to rise above politics and set healthy and gracious conventions for high Constitutional offices if our democracy is to be put back on rails. They need to revamp and restore a Governor’s old glory and appoint neutral non-political Governors.

Clearly, the Governor must not be reduced to being a who’s who to who? who? A glorified chaprasi! It is now imperative that Prime Minister Modi who postulates the Constitution also practices what he solemnly preaches. Remember, what matters are not men but institutions. One can tit for an individual but not tat on the State!  ----- INFA

(Copyright, India News & Feature Alliance)

Open Forum

New Delhi, 2 June 2021

Cyclones & Climate Change

CONTROL MECHANISM CRITICAL

By Dhurjati Mukherjee

The fury and devastation of cyclones is back. First Tauktae and then Yaas have stretched the affected States’ administration workload, already battling the pandemic. Though by now a common phenomenon in India, cyclones in recent years, have intensified, particularly in the Eastern coast. Other thanpreparing an integrated coastal management plan, there is need to put sharper focus on climate vulnerability and make updated assessment.

Last year, super cyclone Amphan ravaged through Odisha and Bengal followed by Fani, causing losses amounting to thousands of crore. In fact, Amphan was predicted as a super cyclone, the second in the Bay of Bengal since the 1999 Odisha super cyclone over the sea. But the devastation would have been severe as Amphan actually lost some steam while over the sea and turned into a severe cyclonic storm when it made landfall.

According to the Council on Energy, Environment and Water (CEEW), given the increase in frequency and intensity of such extreme climate events, India needs to build climate resilience at multiple levels.  As per its analysis, after 2005, the yearly average of Indian districts affected by cyclones tripled and the frequency doubled. In the last decade alone, 258 districts were affected.

This year, the first cyclone to hit India was Tauktae, which was at its most intense near the Mumbai coast before it propelled towards Gujarat. According to experts, an extreme weather event of this nature portends a warning about the likely consequences of ignoring climate change. This is the third year in a row that cyclones in the Arabian Sea have menaced the west coast. Nisarga in 2020 even made landfall near Alibaug in Maharashtra while in 2019, Vayu moved parallel to the shoreline. The recent frequency of cyclones, was a clear sign of temperatures rising in the Arabian Sea. These low-pressure systems are formed when warm, moist air rises up from the sea surface.

Another severe cyclone Yaaswas witnessed on May 26 which caused massive losses to Odisha and coastal areas of Bengal. The inundation as also the cyclones have had a disastrous effect with nearly 156 km embankments damaged in four districts of Bengal, not only destroying huts but will eventually impact agricultural crops.

Both these two cyclones, according to meteorologists, were preceded by very high surface temperature, reaching 31⁰C-32⁰C.  While Tauktae spent several days in the Arabian Sea where it could draw the heat and moisture continuously, reaching peak intensity of over 220 km/hr. , in the case of Yaas, it was formed in north of Bay of Bengal and the travel  distance to landfall was shorter.

Historically, waters off the western coast have experienced fewer storms than Bay of Bengal and typically weaker. Obviously, the rapid warming of the Arabian Sea isleading to not just more cyclones but also more extreme rain events. Such warm ocean conditions have witnessed rapid intensification of cyclones, according to a climate scientist at the Indian Institute of Tropical Meteorology (IITM).

Recently the UN Office for Disaster Risk Reduction (UNIDR) in consultation with the Centre for Research on Epidemiology of Disasters (CRED) in a study found that India suffered economic losses of $80 billion during the 20-year period of 1998 to 2017. It has been ranked among world’s top four countries in absolute economic losses, the others being the US, China and Japan.

Globally, disaster losses during the period have been estimated at around $ 2.908 trillion. These losses increased by over 120 per cent in the last 20 years compared to the preceding two decades (1978-1997). And if losses from climate related disaster are taken into account, these have gone up by 151 per cent. India has been found to be the worst-sufferer of disaster related deaths and economic loses. Thousands of lives are lost and hundreds of crore worth of properties destroyed every year, though not all of these are reported, a fact authenticated by the UN report.

According to a report by Christian Aid in December 2020, floods and Cyclone Amphan accounted for maximum loss of lives globally due to climate change triggered events that year. In fact, Amphan was the costliest cyclone of the year, displacing 4.9 million people and putting an economic impact of over $13 billion (Rs 96,000 crore).

One may mention here that the Eastern region including Jharkhand, Mizoram, Odisha, Chhattisgarh, Assam, Bihar and Bengal is ‘highly vulnerable’ to climate change, according to a recent climate vulnerability assessment report, released by the Science &Technology Ministry. It noted that Assam, Bihar and Jharkhand have, in fact, over 60% districts in the category of ‘highly vulnerable’. The report titled ‘Climate Vulnerability Assessment for Adaptation Planning in India Using a CommonFramework’ noted that all districts or States are vulnerable but some are relatively more vulnerable than others, requiring prioritised adaptation interventions to face the impact of climate change such as extreme weather events, stress on  water resources, soil degradation and desertification.

Cyclones and floods have become a regular feature in the country. The effects of such national disasters are indeed quite severe, specially those residing in the coastal areas for quite a few months. While, no doubt, disaster management by the government has improved significantly over the years, tackling severe cyclones is somewhat limited to relief and rehabilitation, even preparedness before such disasters. Moreover, as is the case with most disasters, the promised aid rarely reaches the affected and they continue to suffer over a period of time

Apart from loss of lives, which has been drastically brought down, the economic loss continues unabated. And obviously, the poor and neglected sections are the worst sufferers of cyclones. Experts are of the opinion that there is need for an integrated coastal management plan with a long term perspective, primarily aimed at raising secure embankments. Take the case of Netherlands, which is surrounded by seas, but manages to be secure and has three-structured barrages (or bandhs) 

It is important to keep in mind that with global warming increasing at a rapid pace, seas are found to warm up seven times more than surface land, leading to higher occurrences of cyclones and massive flooding. It is critical that the suggestion of the CEO of CEEW be given a serious thought i.e. the creation of a national climate risk commission comprising stakeholders with statutory authority and publish periodic climate risk assessments, apart from undertaking other responsibilities. Unless there is an action plan of tackling such disasters in the coming decade, lives and livelihoods of those living in and around coastal areas are likely to suffer severely in the coming years.  

One may criticise the present government but there is no denying that previous governments record has not been any better. However, with cyclones ravaging States with much ferocity,  disaster mitigation has finally been taken up as a professional exercise at the national level. There has been progress in disaster risk reduction wherein largescale recue and relief operations are being undertaken to evacuate people to safe areas. However, relief and rehabilitation still does continue to be major primary work. Now is obviously the time to allocate substantial resources towards building embankments and concrete barrages. ---INFA

(Copyright, India News & Feature Alliance)

Open Forum

New Delhi, 26 May 2021

Pandemic 2^nd Wave

NOT GDP ALONE, STRATEGY VITAL

By Dhurjati Mukherjee

The second wave of the pandemic posed a downside risk, severely affecting economic activity in the first quarter of the current fiscal with future expectations of a muted economic impact as compared to the first wave, according to experts. The first wave due to a national lockdown had hurt economic activity in two successive quarters. However, in the second wave the impact has been much severe with growth estimates being affected.  

The RBI still maintains that the dent to aggregate demand is expected to be moderate in comparison to a year ago. In a separate report, the SBI stated they are little apprehensive of double digit growth in this fiscal though other agencies have downgraded growth to around 9 per cent.. “Given the rise in cases and restriction in every State, real GDP growth of 10.4% looks a bit ambitious. Regarding the question if the pent-up demand would support economic activity once the restrictions are removed, we believe recovery will depend on the psyche of people to come out and this will not happen till the larger population is vaccinated”, Soumya Kanti Ghosh, SBI group’s  Chief Economic Adviser observed. But the larger population being vaccinated may take another six months, if not more. 

Though recently the growth rate has been downgraded to 9.3 per cent by Moody’s Investor Services from 13.7 per cent predicted earlier, there are reasons to believe that the rate in the current fiscal would not be less than 8.5 per cent. However, the problem in assessing growth is focused on the rate of increase of GDP. This narrow perspective of analysing growth obviously does not take into account the rise or fall of the incomes of the poor segments and economically weaker sections, which constitute around 40-45 per cent of the population. In the present situation, not just these groups but also the lower income sections have been greatly affected.

One may also refer to a recent study of Centre for Monitoring Indian Economy (CMIE), which found that a total of 73.5 lakh jobs were lost in April with the unemployment rate rising to over 14 per cent by mid-May from 6.5 per cent in March. It pointed out that the lockdownand economic slowdown has devastated small enterprises in rural areas. India had almost 39 crore employed people at the end of December 2020, counting both the organised and unorganised sectors. The number rose to 40.07 crore by January-end but fell to 39.82 crore by February, 39.81 crore by March and 39.08 by April end. A section of the 73.5 lakh people who lost their jobs in April were agricultural workers, who had just finished harvesting.

Besides, as per a study of Pew Research Centre, which analysed the situation last year, a massive 32 million people slipped from being in the middle class, in terms of income, to the lower income group. The number of people, living in the country with an income of $2 or less per day, increased by 75 million. Another study of Azim Premji University, observed that 23 crore people have been pushed into poverty from March to October 2020, increasing the number of poor households by a staggering 77 per cent, which may now be anything around 80%.

As reports have indicated that apart from loss of jobs, partial lockdowns have very severely affected daily wage earners as also small traders and shopkeepers. The lack of demand, even in urban areas but, due to reduced purchasing capacity of a major section of the population, is another indicator of the economy not being in proper shape. Moreover, the sudden spurt in prices of pulses, edible oils and some other grocery items has put most families in great crisis. Food inflation climbed over 5 per cent -- may have crossed 5.5 per cent by end April -- and overall consumer inflation is above 5.5 per cent.

Though industrial output jumped at the fastest pace in at least nine years, clocking 22 per cent jump in March, on the back of a 19 per cent decline a year ago, the reality is that this has had little effect on the masses. The increasing pool of unemployed people has emerged as an enormous problem with no hope of new livelihood opportunities coming up. The pandemic as, is generally agreed, is of stunning proportions leading to a weakened economy crippled by inadequate attention and faulty policies.

What needs to be assessed is not the overall growth but the extent of income loss and deteriorating conditions of the lower segments of society. In this connection, there emerges the need for a planned strategy to provide work to the poorer and impoverished sections, both in rural and urban areas. However, the government has yet to come up with any remedial measures to ameliorate the sufferings of the struggling masses.

It is the Supreme Court that has understood the problem and directed the Centre and the governments of Delhi, Uttar Pradesh and Haryana to provide free rations to migrant workers in the National Capital Region without insisting on identity proof and arrange transport for those migrants who want to return home. The bench of Justices Ashok Bhushan and M.R. Shah said these governments must open community kitchens and serve two meals a day to the migrant workers and their families as the petition  estimated 8 crore migrant workers are facing severe hardship due to the second wave of Covid. It is now necessary for the different State governments to take a hint and adhere to the recommendations of the order.     

However, this may not be enough as employment opportunities need to be created both in the rural and urban areas and this can be done by making available more funds for MGNREGA, which has reduced in the current fiscal. Also some such programme needs to be thought of in urban and semi-urban areas. Not just the poor workers, who are stranded or have lost their jobs, there are sectors like construction, where work has slowed down, while the problem is severe in hospitality and tourism, aviation, jewellery manufacturing etc.  

Finally, if the Covid situation does not improve by June, or latest by July, sufferings would accentuate, even if two meals are made available. For one class of citizens, education has come to a standstill as also treatment of diseases, except Covid-19. Government planners and economists should not just calculate the GDP but evolve a strategy so that the lowest 30 per cent of the population do not die of starvation or under nutrition. When will we hear something from the authorities sitting in glass houses in New Delhi? ---INFA

(Copyright, India News & Feature Alliance)