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Constitutional validity of quotas for economically weaker section

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SCHEME OF RESERVATION FOR THE ECONOMIC WEAKER SECTIONS

On 9th January 2019, the Parliament of India enacted the Constitution (103rd Amendment Act,2019) and authorized the State to make reservations in higher education and affairs of Public Employment solely on the basis of economy. The act amended Article 15 and 16 of the Constitution by inserting 15(6) and 16(6). The act received presidential approval on January 12, 2019 and was issued in the Gazette the same day. The amendment was made to provide for 10% reservation to the citizens, belonging to the Economic Weaker Section (EWS) category. The reservation to the EWS category was provided without touching upon the existing scheme of reservation for the backward classes which include Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs).

As per the new amendment Article 15(6) enables the State to make special provision for the growth of economically weaker section of the society, including reservation in educational institutions. It states that such reservation can be made in any education institutional togerwith aided and unaided private institutions, excluding minority educational institutions covered under Article 30(1)

Under Article 15(6)(a), the benefits of the EWS reservation, were extended only to the candidates belonging to General category which were, prior to the said amendment, not covered by the existing scheme for reservation. This reservation to the economically backward classes is based upon the concept of social backwardness.

Furthermore, vide Article 15(6)(b), provision was made for reserving 10% seats for EWS category in Central Government Educational Institutions and private educational institutes, both aided and unaided, with the exception of minority educational institutions under Article 30. This 10% ceiling is individualistic of the ceilings on subsisting reservations. However, an amendment to the Article 16 granted 10% reservation to the citizens belonging to EWS category in services under the State.

n services under the State. In 1980, the Mandal Commission Report, accompanied the Supreme Court judgment in the Indra Sawhney v. Union of India case did not allow more than 50% of seats in the educational and service matter for SC, ST and OBC who add up to 70% of the total population of the country. This lead to substantial development in their status; according to the data given by the Planning Commission between 2004-2005 and 2011-2012, more people amidst the underprivileged society-SC,ST, OBC- were lead over and above the poverty line, compared to the other sectors of the classes in society. Consequently, it became an important for the legislature to structure policies in a way that it uplifts the economically weaker section of the society who belonged to the General category. To safeguard this the legislature passed the Constitution 103rd Amendment Act, to give 10% reservation in job and education sector to the economically weaker section in general category.

GROUNDS OF CONTENTION

i.                     Economic criteria cannot be the sole basis, but one of the grounds, for granting the reservation

It is argued that the income and wealth of the citizen cannot be the only basis upon which seats can be reserved for individuals falling below a certain economic threshold.

One of the various contentions raised against the Act was that it set up reservation on the footing of economic standard. But if we take a look into the Constitutional Assembly Debates relating to the first Amendment Act, 1951, concerning to addition of Article 15(4) it is obvious that the explanation of backwardness in the Article 15(4) was contemplated to be alike Article 340(1). That is why the word “economically” did not find a position in Article 15(4) although many members pointed out that in the discerning of socially and educationally backward classes, economic backwardness could not be disregarded

In Youth for Equality V. Union of India, Gopal Sankarnarayanan, counsel for the petitioner Youth for Equality, contended that the 103rd Amendment raises different challenges- such as making reservation on economic ground only, and perhaps violating equality for excluding SC and ST. Later, he clarified that he will only challenge the amendment on the grounds that it exceeds the 50% ceiling limit as 50% limit is the fundamental in the right to equality and is a basic feature of the Constitution. He pointed out two important issues,

a.       There is a difference between the determination of income for creamy layer exclusion and EWS inclusion leaves many members of the Sc, ST, OBC communities neglected.

b.       Minority private educational institutions continue to be exempted from all such reservations obligation, including the 25% reservation for children from lower background under Articles 21A of the Constitution.

To which J. Bobde urged to not meld the issue of EWS reservations with minority status by assuming that the poor can belong to all communities. Determining the existence of a mandatory 50% limit on reservation was a substantial question of law.

Attorney General KK Venugopal argued that the 50% limit on reservation is not mandatory as said in Indra Sawhney v. Union of India . He further contended that the rsercation based on economic criteria alone has already been held valid in a binding judgment of the cour, Society for Unaided Private Schools of Rajasthan v. Union of India. A welfare with thepopulation od 200 M poor people, Indian State had an obligation to give effect to the Preamble’s objectives of economic justice and equality of opportunity, as well as Article 45,46 in the Directive Principles of State Policy. He further added there was no reason to refer the matter to a larger bench as every matter of grave effect on Article 14 has already been settled by the Supreme Court. The amendment provided 10% reservation for the poor among the 50% that is not covered by reservation. He also said that it was government’s constitutional duty to uplift the poor by providing education to them.

In K.C. Vasanth Kumar v. State of Karnataka, Supreme Court talks about the traits of backward classes. It was done on the appeal of Karnataka Government, who wanted the Court to lay guidelines for the dispense of the task of the Commission which was to be set up for the same. However, all the Judges gave varying opinion on this compound question. Nevertheless, on an adjacent look at the judgment it is noticed that all the Judges concur upon one point that economic basis is the principal factor for determining backward classes. Justice Chandarchud underlined two tests that should be applied for spotting backward classes.

a. They should be similar to the Scheduled Caste and Scheduled Tribe in the matter of their backwardness;

b. They should fulfil the means test which is the test of economic backwardness, given by the State Government in the circumstances of the prevalent economic backwardness.

Similarly, Desai J., held that the only criteria which can be sensibly conceived is one of the economic backwardness.

In Indra Sawhney Case, Justice R. Sahai noticed that individuals among the group, who may have attained a social status, should be disqualified to claim reservation. Hence, it can be noticed that either through judicial proclamation or by citing Constitutional Assembly Debates, which verifies the fact that reservations were meant to elevate the people economically. This is additionally explained by referring to the extract of the first two Backward Classes Commissions:

a. The First Backward Classes Commission (Kalelkar Commission)

b. The Central Government appointed a Backward Classes Commission under Article 340 of the Indian Constitution. Its main object was “to scrutinize the position of socially and educationally backward classes within the country and the deprivation under which they work and to make suggestions for the steps to be taken by the Union or any State to remove difficulties and to improve their conditions”. The Chairman of the Commission, although, after signing the report requested the President to reject it. The Chairman believed that the reservations and remedies suggested on the basis of caste should be given up altogether. Only then it would be possible to help the extreme poor and members of all the communities.

The Second Backward Classes Commission (Mandal Commission)

Chapter 7 of the Constitution and talks about the postindependence period where about 90% of higher posts under the State and seats in the medical and engineering colleges were occupied by the higher castes. Therefore, post-independence era the solution to this situation was taken with the incorporation of Article 16(4).

Eventually, the issue of determining backwardness came to light in the case of M.R. Balaji v. State of Mysore, wherein the newly inserted Article 15(4) was explored by the Supreme Court. The challenge here was a governmental order issued by Mysore, wherein backward classes were recognized solely on the basis of caste. The five-judge bench of the Supreme Court strike down the categorization on various grounds – the main amongst them is the Court’s explanation of Article 15(4) as being “classes of citizens”, not as “castes of citizens”. The test of caste was repudiated for some other reasons as well – firstly, caste is irrelevant in many sections of the society which does not acknowledge the caste system such as Muslims or Christians; secondly, the use of caste may be unsuitable if the motive is to suppress the caste itself.

Among the three dissenting opinions in Indra Sawhney case, the opinion by R.M. Sahai, J is possibly the most rational one. R.M. Sahai, J opined: Firstly, since the Constitution uses an extensive word of “class” and not “caste”, basic principles of construction says that an explanation leading to identification of backwardness on the grounds of caste ought to be rejected. Secondly, authorizing the state to make reservation under Article 16(4) on the bais of race, religion or caste would defeat the purpose and object of Article 16(2) and would account to discrimination on the basis of caste. Lastly, identification based on caste would prevent socially, educationally and economically backward members other communities from being considered as backward classes.

On these grounds, R.M. Sahai J. opined that usage of caste as the cause for determination of backwardness is constitutionally invalid and also socially and morally forbidden. He recommended a method for identification of backward classes which is based on three grounds – occupation, social acceptability and economic criteria. Kuldip Singh, J. agreed with R.M. Sahal J. and recommended for identification on the basis of secular association as opposed to caste association.

Another dissenter, Thommem, J., said that the Constitution is neither caste-blind nor caste-biased, but fully alive to caste as one of the basic standards to be computed in the process of identification of backward classes of citizens. Nevertheless, he cleared that any reservation merely with reference to caste may result to discrimination.

The Sinho Commission report of 2010, which has been quoted as the basis for its legislation to permit 10% reservation to the EWS mainly among upper castes, never clearly recommended reservation for the EWS but was only firm about confirming that the EWS gets access to all the welfare schemes in the country. The commission suggested welfare measures for the EWS comprising easy access to the existing schemes in the field of housing, healthcare, sanitation, skill development and making certain that the EWS women in General category avail jobs under NREGA and children get educational scholarship.

On the contrary, it is urged that the Parliament had passed the Constitution (One Hundred and Third Amendment) Act, 2019, after it had considering the Sinho Commission Report which had stated that there is a substantial section belonging to the unreserved category living below poverty line which is almost at par with the percentage of people belonging to the BPL category in the reserved category/Backward Class. Therefore, the EWS section of the unreserved category which is at a disadvantage for lack of resources and poverty has been denied benefits and opportunity of affirmative action since it did not belong to the BCs or SEBCs as defined by the Hon’ble Supreme Court of India in Indira Sawhney’s case.

The nine judges’ Constitution Bench in the Indra Sawhney case had also struck down Office Memorandum dated 25.9.1991 which provided for reservation of 10% of the posts in favour of other economically backward sections of the people who were not covered by any of the existing schemes of the reservations since such classification was impermissible under Article 16 (4) and there was no other provision before the present amendment to provide reservation to EWS category in the Constitution prior to Constitution (One Hundred and Third Amendment) Act, 2019. The Hon’ble Supreme Court had stated that such criterion is yet to be evolved by the Government of India. It is therefore evident that evolving economic criterion for reservation does not ipso facto entails that it violates the basic structure of the Indian Constitution. ii. Constitution 103 Amendment Act, 2019, is not in violation of the basic structure of the Constitution of India It is contended that limiting the benefits of the EWS reservations to the General category is not in violation of the Fundamental Rights guaranteed under Articles 14, 15, 16, 19 and 29 of the Constitution of India. The benefits of the affirmative action if based solely upon the economic criterion cannot be extended exclusively to the candidates belonging to General category. In such a case, all the eligible citizens below a certain economic threshold shall be made entitled to avail the benefits of the EWS reservation irrespective of their caste, class or social status.

Therefore, by inclusion of phrase “other than the classes mentioned in clauses (4) [and (5)]” in Article 15 and Article 16 and limiting the benefits of the unreserved category is manifestly arbitrary and discriminatory.

It is pertinent to mention that the Parliament is well within its rights to pass legislation towards the fulfillment of the Directive Principles of State Policy enumerated under Part IV of the Constitution. The Constitution (One Hundred and Third Amendment) Act, 2019, has been enacted “to promote with special care the educational and economic interests of the weaker sections of the people in furtherance of directive given under Article 46 of the Constitution of India.”

The Act is claimed to be violation of the basic structure of the Indian Constitution. But before going deeper into this question the basic structure doctrine has to be understood in a broader sense. Even so every provision of the Constitution is important but this does not put every provision of the Constitution in the same place. The correct position is that every provision of the Constitution can be amended on a condition that it does not alter the basic foundation and structure of the Constitution.

The definition of basic structure of constitution was first addressed in 1973, by Justice J.R. Mudholkar, in Sajjan Singh v. State of Rajasthan, It is also a matter of thought whether making a change in a basic feature of the Constitution can be regarded solely as an amendment or would it be, in effect, rewriting a part of the Constitution; and would it be within the purview of Article 368?

Furthermore, it has been held in Keshavananda Bharati v. State of Kerala that mere amendment in the provision embodying the basic feature does not ipso facto entail that the said amendment is unconstitutional so long it does not touch upon its foundations. It was observed:

“The amending procedure is concerned with the statutory framework of which it forms part itself. It may effect changes in detail, remould the legal expression of underlying principles, adapt the system to the needs of changing conditions, be in the words of Calhoun the medicatrix of the system’, but should not touch its foundations.”

The basic foundation and structure of the Constitution were mentioned by Sikri, C.J. as: • supremacy of the Constitution; • separation of powers between legislature, executive and judiciary; • republican and the democratic form of Government; • secular character of the Constitution; • federal character of the Constitution. To decide whether the Act is a violation of the basic structure of the Constitution it has to undergo two tests. The first one is the width test, which confines the limits of amending power. This will include evaluation of 4 issuesa. quantitative limitation such as violation of the 50% ceiling for all reservation sum up together. b. Exclusion of creamy layer c. Compelling grounds such as backwardness of the EWS for whom the reservation has been made. d. That general administrative efficiency is not obliterated by the new reservation.

The second test is called the identity test, under which the SC will scrutinize whether, after the amendment, there is any alteration in the identity of the Constitution.

It is observed by the Hon’ble Supreme Court in Indra Swahney’s Case that the reservations granted to the backward classes under Article 16(4) are not exhaustive and further classifications can be made in this regard by the legislature. Therefore, supplementing EWS category to the already existing Backward Classes for the purpose of reservation is not in itself violation of Article 16(1) of the Constitution. It was observed:

“The aspect next to be considered is whether Clause (4) is exhaustive of the very concept of reservations? In other words, the question is whether any reservations can be provided outside Clause (4) i.e., under Clause (1) of Article 16. There are two views on this aspect. On a fuller consideration of the matter, we are of the opinion that Clause (4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in Clause (1) is exhausted thereby.”

It further goes on to conclude:

“Clause (4) of Article 16 is not an exception to Clause (1) thereof. It only carves out a section of the society, viz., the backward class of citizens for whom the reservations in services may be kept. The said clause is exhaustive of the reservations of posts in the services so far as the backward class of citizens is concerned. It is not exhaustive of all the reservations in the services that may be kept. The reservations of posts in the services for the other sections of the society can be kept under Clause (1) of that Article.”

Therefore, it is completely permissible to amend Article 16 and include EWS as a separate category other than backward classes mentioned under Article 16(4) in furtherance of the DPSPs without altering the basic structure of the Constitution.

As far as the objection with respect to exclusion of backward classes from the EWS reservations is concerned, it would be necessary to look into the object of the amendment act which begins with the following:

“At present, the economically weaker sections of citizens have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged. The benefits of existing reservations under clauses (4) and (5) of article 15 and clause (4) of article 16 are generally unavailable to them unless they meet the specific criteria of social and educational backwardness.”

Furthermore, the economic criterion even though is not the sole criterion for determination of the backward classes but forms the basis of determination of creamy layer which are excluded from the purview of the reservations. Concept of creamy layer was first introduced in Indra Swahney case, wherein it as observed that “for excluding ‘creamy layer’, an economic criterion can be adopted as an indicium or measure of social advancement,” after which an economic threshold was set by the government for determination of the creamy layer. Furthermore, the Hon’ble Supreme Court of India in M. Nagaraj vs. Union of India had applied the concept of creamy later to SC and ST reservations as well which was upheld in subsequent judgments of the Hon’ble Court including Jarnail Singh vs. Lachhmi Narain Gupta, which finally put this issue to rest.

The Constitutional Bench of the Hon’ble Supreme Court in K.C. Vasanth Kumar vs. State of Karnataka, had recommended means test also to be included for granting reservations to SC and ST. It was stated that, “the means test, that is to say, the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after the period mentioned in (1) above.”

The entire concept of creamy layer amongst backward classes is based on economic criterion wherein only those under a certain economic threshold are considered eligible for reservation under the backward class category. Therefore, excluding the backward class candidate from the EWS reservation is a reasonable classification as the object of the amendment already pointed out above, is to extend the benefits of affirmative action to disadvantaged class which was previously excluded only because they fell under unreserved category. Therefore, Constitution (One Hundred and Third Amendment) Act, 2019, is not in violation of the basic structure of the Constitution. iii. 50% ceiling on reservations set by the Hon’ble Supreme Court of India is not exhaustive in nature

It is urged that the Constitution (One Hundred and Third Amendment) Act, 2019, makes provision for 10% reservation for EWS category ‘in addition to’ the already existing reservations for Backward Classes which would result in total reservation exceeding the 50% limit set by the Constitutional Bench of Supreme Court in M.R. Balaji vs. State of Mysore in which 60% reservation was held to be excessive. Balaji’s decision was subsequently affirmed in Indra Swahney’s case and was thereafter confirmed in Nagraj’s case.

It is argued that the 50% ceiling is sacrosanct and cannot be exceeded by way of the present constitutional amendment. It is also suggested that the EWS reservation can be applied horizontally to avoid breaching the 50% limit imposed by the Supreme Court.

In support for 10% EWS reservation over and above existing 50% reservation for backward classes, firstly it is contended that the maintaining 50% ceiling is not a constitutional obligation. There is no provision in the Constitution which states that reserved seats cannot be in excess of a certain limit. Secondly, while imposing the 50% ceiling, the court was only concerned with the reservation provided to Backward Classes and SEBCs.

Furthermore, the Supreme Court of India in dealing the quantitative limitations upon reservations had to only deal with reservations under Article 15(5) and Article 16(4) of the Constitution. Therefore, the ceiling was limited only with respect to the reservation for Backward Classes only. It is stated in Indra Sawhney judgment that, ‘From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.’

Read the conclusion on www.dailyguardian.com.

Opinion

Aatmanirbhar Bharat: Roadmap for making universities self-reliant

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Indian universities have taken up the challenge of finding innovative solutions to the problems raised by Covid-19.

Prime Minister Narendra Modi-led government started the Aatmanirbhar Bharat initiative with a motive to address the basic issue of abysmally low market demand and economic slowdown induced by the Covid-19 pandemic. The main thrust of the programme is towards making India self-reliant and resilient in both normal and crisis times. During the pandemic, the universities had a single option of changing the study module to the digital one. The educational institutes started focusing on thinking out of the box to meet the challenges of the digital revolution while embracing entrepreneurship, critical and problem-solving skills as part of the academic experience, as well as creating cultures where innovative thinking is inspired and nurtured.

 The challenge didn’t end here. The universities are also planning adequate steps to prepare all students for a rapidly changing job market and to make them industry ready and self-reliant. They must ensure that talent from the diverse, global community has access to opportunities in the new era of digitisation. Since Aatmanirbhar Bharat has become a mantra for everyone, universities are urging students to showcase their talent by developing more Indian apps in different categories under the “Aatmanirbhar Bharat Innovate Challenge”. Apart from this, the following factors are also playing a crucial role in making Indian universities selfreliant: 

New dimension to entrepreneurship model

 In the pre-Covid era, academic institutions put attention on training their students in skills that were required in larger companies. But with Aatmanirbhar Bharat, the initiative has brought the country’s focus back on MSME — one of the key driving forces towards self-sufficiency. MSME constitutes 80 percent of the workforce in the Indian industry. Ignoring this sector would be a lost opportunity. In developing nations across the world, MSMEs have engaged with academia by investing in research and innovation — a relationship that can benefit both institutions and industry. Students need to be trained accordingly for the jobs that will be in demand in future. Innovation as the major objective 

Indian universities have taken up the challenge of finding innovative solutions to the problems raised by Covid-19. Though it has brought insurmountable suffering to humankind, it has also propelled many to push their creative boundaries for the betterment of the society. With the help of advanced artificial intelligence and Internet of Things (IOT), many universities are working hard to transform a village into a smart city so that the residents of the village can also avail all the facilities that will enable them to grow.

Making employment sustainable

 When the world is going through such a phase, it is inevitable for the industry to rely on academia to access and train the kind of talent that is required to thrive in the future workplace and to ensure life-long learning. It has been estimated that more than 12 million Indians get job-ready every year but the sad part is that not everyone is well acquainted with the needs of the company. Our educational institutes should follow the “Experiential University” model, which might be one of the answers to the challenge of a highly developed education system. Providing quality education and training 

Through the provision of quality education and training to its students, we can make the students self-reliant. It is important that universities pay much premium on this because the more educated and highly skilled people are, the higher are the chances of a nation’s development. It is for this reason that many developed countries that are self-reliant don’t take education for granted. Such countries have a huge chunk of their population having various degrees of quality education and training. 

Encouraging students to take responsibilities 

Responsible students are aware of their roles, duties, tasks and schedules. This enables them to plan and prepare for their days. They are committed to tasks from start to finish. They will be taking corrective actions on their own. They will also persist in doing tasks even if they are tedious or boring and will always be ready to face the consequences of their actions. Being responsible empowers students to feel confident and in control of their lives. 

National Education Policy’s crucial role 

The policy lays special emphasis on the National Research Foundation because innovation is important for the country’s progress. Only when we strengthen innovation and research, then our country will remain competitive and move ahead. The more innovation is strengthened in the country, the more progress it will make in a competitive world. This will also enable citizens to become global citizens and at the same time making them know and understand their roots. The New Education Policy also focuses on research and development to make India a key research and development destination for the world. 

 The author is the Vice Chancellor, JK Lakshmipat University, Jaipur. The views expressed are personal

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The evergreen hero and India’s first superstar

Pankaj Vohra

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Without a doubt, Dev Anand was the first mega star of Indian cinema, who over a period of time, influenced the lifestyles of multiple generations. Although a part of the troika comprising him, Dilip Kumar and Raj Kapoor, he had a fan following that was mind boggling. If Raj Kapoor was considered as the greatest showman and Dilip Kumar the tragedy king, Dev Anand was the quintessential romantic hero. Girls would swoon over him and boys copied his hair style or tried to dress like him. Each and every movie starring Dev Anand would be eagerly awaited and the black market of tickets for the first day, first show was higher than any other contemporary star of his time. Even when Rajesh Khanna and later Amitabh Bachchan attained a superstar status, it was Dev Anand alone who survived their phenomenal rise, and continued to have his box office appeal. 

Having interviewed him on several occasions, one could safely conclude that he was a power bank of energy and enthusiasm. He would always be on the lookout for new scripts and new talent and was obsessed with making films. Many of his critics during his last years, wanted him to give up acting, but in his inimitable manner, Dev Saheb, as he was addressed later, would shoot back and ask, what was their problem when he was spending his own money and time in doing what he liked the most. Together with his brothers — Chetan and Vijay — he had set up the Navketan films, under whose banner, he acted in multiple blockbusters. His movies were trend setters and many were even ahead of their times. Guide, for instance, is regarded as probably his most memorable movie, so far as his performance goes, but his appeal always remained undiminished. Tere Mere Sapne and Hare Rama, Hare Krishna were exceptional, as were Taxi Driver, CID, Hum Dono and Jewel Thief. He enthralled his fans by his performances in Johnny Mera Naam and Gambler and innumerable films before that. When Prakash Mehra decided to make Zanjeer, he made Salim-Javed write the script keeping Dev Anand in mind. However, the actor turned down the role and Amitabh stepped in to make history. The principal reason why Dev Saheb outlived his generation of actors in the silver screen was that he kept abreast with the times and looked after his appearance. He told me once that since childhood, he was administered Chyawanprash by his mother and he continued to have it.

 Dev Anand had a mind of his own and politically was never afraid of taking a stand. He was one of the very few stars who came out against Emergency in 1977. He was romantically linked to many actresses of his time, Suraiya and Madhubala in the early years and Zeenat Aman in the later phase. However, he did not allow that to affect his work. In an interview, he told me that he would tell me about his heroines one day, but that opportunity never arose. A product of Government College, Lahore, where he was a batchmate of my father, Dev Anand was specially invited by Atal Bihari Vajpayee when he as the Prime Minister undertook his historic Bus Yatra to Lahore. He became a hit, across the border as well. For him, there was no singer who could sing ghazals better than Mohammad Rafi and lighter songs better than Kishore Kumar, both of whom were his favourite playback voices. Most of the films produced by him had music by Sachin Dev Burman, in whose abilities, he had immense faith. However, many others also composed hit songs for him in his various other starrers. When he fell ill, he went to London for treatment since he did not wish any of his fans to see him in the condition he was in. It is not surprising that he breathed his last in the British capital where his last rites were also performed. While remembering him on his 97th birth anniversary on Saturday, we must never forget that Dev Anand was the man for all seasons of the Indian cinema. A phenomenon who left an indelible imprint on the celluloid. 

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Opinion

How succession can make or break a party

A political party can survive the test of time only if its brand value stays intact— which is dependent on whom popular leaders pass the baton to. The case of the Shiv Sena is an example of how things can go wrong if poor choices are made.

Vishwas Pathak

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The driving force behind the success of any sector in the public domain is the dominant perception of its respective brands amongst recipients. The better the perception, the higher the acceptance! There are numerous examples to be analysed of how popular brands had to bite the dust only because their choice of succession had been based on impractical decisions. Look at Nokia’s journey from being the “king of the phone era” to “struggling for survival”, or that of the late Dhirubhai Ambani, whose business was divided between his two sons, Mukesh and Anil Ambani. The economic scenarios of the two, if compared, have become case studies for understanding the importance of succession.

 Even politics has not escaped from being grappled with this phenomenon of brand perception. Shiv Sena leader Sanjay Raut has made an appeal recently to MNS chief Raj Thackeray, requesting to step up his efforts and play a vital role in preserving the ‘Thackeray’ brand in Maharashtra’s politics.

 As far as the concept of brands is concerned, one has to understand that this particular concept is a marketdriven phenomenon which can be defined as a general idea and an abstract meaning that gives a certain consistency to a brand and creates a distinctive identity in the market and the minds of consumers, or voters, in the case of politics. This is also built over the years.

 In the case of the Shiv Sena, which was established by the late Balasaheb Thackeray years ago, it became a widely accepted brand in the Mumbai circles initially since its ideological foundation was based on regional chauvinism. However, with changing times, Balasaheb moved on to the issue of Hindutva, which later resulted in the party extending its base across the entire state of Maharashtra. The brand of the Shiv Sena was also associated with its karyakartas, who worshipped their party leader because Balasaheb Thackeray’s credibility and acceptance had percolated through the minds of his party workers.

 However, when it came to appointing his successor, Balasaheb chose his son, Uddhav, over the largely accepted leadership of Raj Thackeray who was seen as the mirror image of Balasaheb. Raj, having learned the basics of politics from Balasaheb himself, could naturally dive into the nature of the politics of the Shiv Sena. However, with the choice of a blood relation over a more politically deserving person, the late Shiv Sena supremo certainly could not manage and navigate through his succession plan. As a result of the choice not being done using the correct equations, political perils were likely to be encountered. And thence commenced the devolution of the “Thackeray” brand in Maharashtra! 

The situation now is such that at a time when the Thackeray scion is none other than the chief minister of Maharashtra, his close confidante has appealed to Raj Thackeray to help save the brand of Thackeray. What can be understood from here is that the devolution of a brand, no matter how huge it is, is inevitable if succession is based on emotion or nepotism, rather than pragmatism. Change is the only constant in nature and those who fail to adapt with the changing times are bound to fall.

 The BJP is often regarded as the party with a difference. Currently, the BJP is a brand which is much bigger than all the political parties in the country combined. However, the party’s image is marked by its choice of pragmatism and not nepotism. While it is a fact established beyond doubt that the next successor of the Congress will be someone among the Gandhis, or that the successor to Uddhav Thackeray and Raj Thackeray will be Aaditya and Amit, no one in the wildest of their imaginations can name the next BJP national president. 

This is the difference between the brand of the BJP and other political parties. The BJP’s brand is based not on one person’s capability but on the ideologies derived from the efforts made by numerous generations. Having said so, it should be mentioned that the torchbearer of the same changes from time to time in the most democratic manner. 

As far as the appointing of a successor for the party is concerned, the names of the party’s leaders can point to the fact that the decision is based on merit. While there was the era of Syama Prasad Mukherjee and Deen Dayal Upadhyay, there was also a successful reign handled by the combination of Atal Bihari Vajpayee and L.K. Advani. Similarly, later choices involved the likes of Pramod Mahajan, Arun Jaitley, Nitin Gadkari and Rajnath Singh. 

Even now, when our leaders are none other than Prime Minister Narendra Modi, Home Minister Amit Shah and BJP president J.P. Nadda, efficient leaders who have the potential to lead the party in the future are being nurtured and trained from their nascent stages. While thinking of the next ten years, one also has to bear in mind the thought of who can hold the reins for the ten years thereafter! Then one may think of Devendra Fadnavis or Yogi Adityanath. Tejasvi Surya, a party worker who went on to become a Member of Parliament, is also an example of how the BJP believes in making merit-based choices. This practice can also be traced in the RSS where every successor has set a paradigm to be followed, while the organisation evolves and grows stronger. 

The most important aspect of the phenomenon of maintaining a brand is to have a strong foundation based on principles and ideologies which have to be improvised with changing times. While making these changes, if the next successor who is appointed is contrary to the needs and requirements of the brand, then decline is inevitable. This is exactly what has happened in the Shiv Sena. 

Ever since Uddhav Thackeray became the chief minister and appointed his son as a minister, disdain for the brand of the Shiv Sena commenced. While the first dent on the party brand appeared due to its mismanagement of the state’s governance, the dent only grew deeper with Uddhav Thackeray’s inefficiency in handling the Covid-19 situation. The last nail in the coffin was struck when the Shiv Sena lost the battle of popular perception amidst the Kangana Ranaut versus BMC row. This incident caused the brand image of the Shiv Sena to fall to its lowest. 

The situation could have been entirely different had the late Balasaheb Thackeray appointed the correct successor. The case of the Shiv Sena verily makes it clear that taking a pragmatic decision while deciding on matters of succession is ultimately the key to a lasting brand!

 The writer is the media head of BJP Maharashtra. The views expressed are personal.

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Opinion

Unveiling 103rd Parliamentary Standing Committee interim report on functioning of virtual courts

Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process improvement through mechanisation is a primitive first step. Technology in the judicial system needs to unfurl its true potential; today, blockchain artificial intelligence, algorithms and the technology of command have the capacity for calling attention to a fundamental transformation of the judicial process, dispute containment, ensuring only those conflicts requiring judicial resolution enter the court system.

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The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinised as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide, i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018, live proceeding was permitted. The Committee persuades the judiciary to speculate solutions viz mobile videoconferencing to licence advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity unless the hierarchy is bound to crumble.

“Vision without execution is hallucination”
—Thomas Alva Edison

Introduction

COVID-19 descended without a warning, as many pandemics do as history tells us. Access to Justice cannot suffer a lockdown whatever be the circumstances; the criminal justice system can- not function without courts. The courtroom is a service liberating the witnesses meant to give testimony, Clients put out their confidence, Contracts get negotiated, Judges hang down their judgements, and Contracts result in legislation delineating statute. No doubt the British system of administration was superfluous but it has some gross deformities in context of adhering in In- dian Judicial System and has outnumbered repercussions.

Consider the most fertile and dangerous embodiment of disillusionment. Our minds can flip from defending the facts we know into a mode of tearing up the reality.

Taking cognizance of the same, on September 11, 2020, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Committee) after taking inputs from key stakeholders and best practices across the globe presented its interim report on “Functioning of Virtual Courts/Court Proceedings Through Video Conferencing” (Report) to the Hon’ble Chairman of Rajya Sabha.

How do we conceive of technology and what we can see as the role of technology in? It must be towards fortifying fundamental values of human dignity and equality; our court procedures are just too tardy, too expensive, and unintelligible to common citizens. Technology is an intimate adjunct to the rule of law. Technology giving rise to a changeover, rather than simply automating conventional processes. Process Improvement through mechanization is a primitive first step. Technology in the judicial system needs to unfurl its true potential, today blockchain artificial intelligence, algorithms and the technology of command today has the capacity for calling attention to a fundamental transformation of the judicial process, Dispute containment ensuring only those conflicts require judicial resolution, enter the court system. Dispute avoidance facilitates those processes which ensure that a dilemma does not reach the stage of an animosity. Disseminating knowledge about privileges and remedies available, so as to entrust citizens & Emphasising on virtual courts, and the future of technology. While Design structure stimulating technology is required to bolster the ambit of courts to implicate dispute avoidance and to endow dispute containment by the courts to mediation and foster dispute resolution. The UK civil justice council report proclaimed one’s incapable to do this would be a fluoride element in the law is asking when someone introduces fluoride into the water and stop to decay. So we’d be able to stop the decay of the system, and that would be a fluoride element in the law. Forthcoming justice that requires all information & data findings of the courts, as well as court proceedings themselves, should be understandable to non-lawyers. Paradoxically The Indian legal System rolled out virtual hearings by the dint of Article 142 of Indian Constitution on 6th April 2020 besides Turkey, Canada & Italy.

General Concern Surrounding Virtual Courts

The concerns have begun to surface. The spokespeople of Bar showcased the flaws as to why the virtual courts cannot be scrutinized as a substantial stopgap for regular courts. The Committee opined three specific magnitudes scilicet access divide, connectivity divide, skill divide. A member of Committee retorted the assertion of digital divide i.e. exclusion of advocates dwelling in rural areas. In Swapnil Tripathi v. Supreme Court of India 2018 live proceeding was permitted. The Committee persuades Judiciary to speculate solutions viz mobile videoconferencing to license advocates. Becoming ignorant towards finances to improve the judicial system at lower levels, there is a need to make availability of finances because it is subordinate courts which form the basic structure the contact of the common man and justice occurrence traces equity un- less the hierarchy is bound to crumble. If the efficient sub- ordinate judiciary is built, the amount of reducing the dependency on High Courts will reduce or limit their burden. The National Judicial Data Grid can be taken up for a 360-degree assessment of judicial officers not just in the terms of the cases they dispose but also how far the courts incorporate the ICT governance system. Clasping Technology becomes a major consideration as the majority of the advocates are not well versed. Specialized Course needs to be entertained to swap with digital platforms.

Poor Connectivity leading to glitches & crashing of systems. In the middle, both the ends have better connectivity that will facilitate better video conferencing. The need for good infrastructure is like the pre-requisite of a healthy body for a healthy mind. It is absolutely essential that there is an atmosphere conducive for good work and an individual needs to refurbish skills. Delay in justice delivery system or the judicial process is a very well-known problem in India, which is yet to overcome, it’s austere.

One ought to surmise that for a law or a penal provision to play a role of deterrence the fallout of a criminal trial in the shape of its final verdict and an actual feat of punishment on the censured is equally crucial that of the gravity of the retribution all this has to be rendered before the public memory fades. Halt and technicality are inoperative in civil actions alone. The condition is not better in criminal justice. Many criminals are never apprehended in contrast to corruption, favouritism.

The most efficacious mechanism to battle docket explosion with the utmost accountability is to unravel commercial disputes of an international nature. Expanding virtual courts becomes the prerogative. Certain laws have to be amended to legalise Virtual Hearings. The peculiar taking of things towards judicial administration heads back to the primary importance of rendering justice between man and man via virtual courts to administer distributive justice as it redeems time. Evaluating evidence becomes necessary to decipher conflict between the opposition. The transformation of handling witnesses, adversaries recoups both litigants & Courts time, undue penny too as the concept of speedy trial falls within the ambit of Article-21 is an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution Kartar Singh v. The State of Punjab. The common or mediocre ones that cannot even solicit the justice availed just because of financial deficit becomes a depreciating asset of their life toiling or haggling with the righteous intentions. Judiciary by the very nature does not have a majoritarian impulse. The attacks on the legal fraternity are out of the technology.

Key Recommendations

In furtherance to the various concerns received by the stake holders and the adverse prevailing situation owing to the on-going pandemic, the Committee also proposed certain recommendations in order to go on efficiently with the justice delivery system even after the pandemic and keep this avenue open for life long.

Some of the key recommendations included; (a) VCs should function in all the Courts even during non-pandemic time, with the consent of all par- ties for certain categories of cases like appeals etc. and final hearings where on- line virtual hearing would be sufficient. Transfer of certain cases from regular courts to VCs will reduce the pendency of cases. (b) A full-fledged VC should be piloted. This would enable the systems to be tested/ refined and further assist the judiciary in identify- ing the cases best suited to VCs. Petty cases should possibly be the first set of cases that may be disposed easily and quickly. (c) VCs may also be extended to cover arbitration hearings, conciliation and summary trials. If national and international arbitrations are allowed to be conducted through VCs, there will be hardly any requirement for real time travel to distant locations. (d) Further, VCs can be extended permanently to various appellate tribunals such as TDSAT, IPAB, NCLAT etc., located across the country which do not require personal appearances of the parties/ advocates. Permanent VCs can also be established for hearing matters relating to administrative and other tribunals at the time of final hearing.

The committee also took into consideration various infrastructural & training requirements that would be necessary to be taken up in order to be well equipped with the technology. The committee recommended the need for increasing broadband access across the populace by timely implementation of National Broadband Mission by The Ministry of Communications. Prevalence of tech brings concerns regarding the data safety and hence the committee also recommended that Ministry of Law and Justice and Ministry of Electronics and Information Technology should address the data privacy and data security concerns while developing an indigenous new platform for India’s judicial system. The said system could leverage block chain technology to improve reliability of evidence and security of transactions and also case files. The report also based its focus on Improving the quality of courtroom technology to overcome the negative impact on advocacy. Further, a study of courtroom design should be commissioned and customized software/ hardware to facilitate VC should be developed.

All such recommendation would go defeated if proper training is not given to both judges as well as advocates. So, in order to be well versed and adopt this technology in long run, the committee also addressed the need of training and opined that Conducting training and awareness programmes in all court complexes across the country needs to be taken. Along with this, Introduction of a computer course as one of the subjects to train future lawyers on digital platforms should be considered by Bar Council of India, so that the upcoming lawyers can be well equipped with digital justice.

Conclusion

Though, the present Report is only an interim report made by the Committee to bring forth the issues being currently faced by the Indian judicial system. While we await the Committee’s conclusive recommendations as per its final report, it seems that the Re- port has taken a holistic approach towards facilitating VCs and at the same time brings substantial judicial reforms. We are sure of that fact that, the adaptability of technology will not only act as an asset to the justice delivery system but proper implementation of the same will also reduce judicial stress of overburdened courts as well as human wealth.

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Legally Speaking

The case of SC gag order against Sudarshan News

One of the arguments advanced by the intervenors is that ‘hate speech’ is punishable under Sections 153A
and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.
Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive.

Siddharth Nayak, Vijay K Tyagi & Krishnagopal Abhay

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There has always been a huge debate on this among various writers. Locke provides an interpretation to this as well. He sternly believes that ideas do require labour. Well we can’t expect that an idea to invent a bulb was without an extreme labour being done by Thomas Edison.

The evolving nature and spectrums of the mode of data distribution by the fourth pillar of Indian Democracy has given rise to dynamic challenges for the existing legal framework to control and regulate. Media being the fourth pillar is indeed playing a pivotal role in the society by trying to educate masses. The freedom of press ensures that citizens are vigilant, well informed, and therefore, can discharge their role in a democracy by fixing accountability.

Freedom of Press and Right to Know

The public’s “right to know” has become an increasingly popular political ideal in India. The essence of this right, for both the public and the press, has gained significance and acquired a new meaning in the contemporary era. Although the Constitution does not expressly guarantee the public the “right to know”, an increasing number of constitutional scholars argue that it is an implicit right guaranteed under Article 19 of the Constitution and by the general principles of constitutional democracy. Freedom of press constitutes not only the individual right of the owner of the news publications, the editor, or the journalist; it also includes the right of the citizens to be informed. It can be forcefully argued that the tenets of Article 19 offers within its ambit, the ‘right to know’ without any constitutional, statutory or executive frame- work to restrict or regulate the same before the cause of action arises. Comparatively speaking, the judicial discourse had long evolved since the days of classical Greek and Rome or the 16th century France which staunchly believed in prior restraints along with post- facto substantive measures.

Thus, freedom of press flows from the citizens’ right to know, which is conceived to be paramount. The Hon’ble Supreme Court of India, through several of its decisions on fundamental rights, has developed this jurisprudence. The courts have always been of the opinion and champion of the concept that censorship, since it necessarily restricts freedom, has always been and will continue to be unpopular with those who, from principle, perversity or for profit, insist on unbridled freedom.

Here, as the journalist is claiming that his show is based on his investigation and analysis of data avail- able in the public domain on the selection of students in UPSC Civil Services Examination, it is not only the journalistic freedom which is restricted by the gag order, but it’s also affecting the people’s right to know about the pattern of selection of students in UPSC-CSE.

Writ Jurisdiction when Alternative Remedy is Available

The petitioners approached the Court by way of Article 32 of the Constitution of India, which allows the citizens to approach the Apex Court for enforcement of Fundamental Rights directly. It is settled law that this jurisdiction can only be invoked in the absence of a redressal mechanism or alternative remedy, unless there are compelling circumstances warranting interference of the constitutional court for vindication of fundamental rights. The doctrine of exhaustion of remedies also cements this. The powers conferred and vested with the Apex Court under Article 32 is too infallible to adjudicate upon such issues as well (emphasis on the word ‘adjudicate’).

Rule 6 of the Cable and Television Networks (Regulation) Rules has adequate provisions which disallow the running of any programme, which is an attack on any religion, defamatory or communal. As noted by the Hon’ble Supreme Court in its order, if a show is found to be violative of the said rule, sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1955 are imposed. A bare reading of Sections 19 and 20 makes it amply clear that such sanctions/prohibitions will come from “any authorized officer” or the “Central Government” respectively. The Court, after mentioning the previous sections, took it upon themselves to exercise a power which must be kept outside of their reach.

One of the arguments advanced by the intervenors is that “hate speech” is punishable under Sections 153A and 153B of the Indian Penal Code, Section 3(i)(x) of the SC/ST Act and Section 5 of the Cinematograph Act.

Without getting into the details of the said provisions and examining whether the content falls under their purview or not, what is to be seen here is that these provisions are punitive in nature, not preventive. Under no stretch of imagination can these be used by the Apex Court to issue a blanket order restricting the Freedom of Speech and Expression, which is guaranteed by Article 19(1)(a) of the Constitution. These provisions come into picture after the content is delivered/published, and if the person is found guilty, they shall be punished as per law. For the sake of argument, even if the Court interprets the said provisions to be preventive as well, it is well settled that Fundamental Rights will overpower statutory provisions if they are at loggerheads.

That right is not absolute; it comes with restrictions laid in Article 19(2). It is well settled that before restricting anyone’s freedom under Article 19(1)(a), the “speech/ expression” has to be examined; and if it passes the tests laid in Article 19(2) – post-examination – it may be restricted. One of the issues with this blanket gag order is that it was passed based on a “prima facie” view, formed after looking at some snippets of the show provided by the petitioners, even when the Counsel for Sudarshan TV requested the Court to watch and con- sider the series in toto. Quite interestingly, the Court did not enter the domain of Article 19(1)(a) vs. Article 19(2), but even if they had, it is not within the reach of the Court to pass gag orders invoking the restrictions laid in Article 19(2).

Notably, the constitutional text of Article 19(2) states that the State might make laws to restrict the right guaranteed under Article 19(1)(a). Firstly, it is the ‘State’ which can limit the right and secondly, it has to be done by bringing a ‘law’. In a long catena of judgments, the Hon’ble Apex Court has time and again held that judicial functions of the Judiciary are not under the ambit of “State” as per Article 12 of the Constitution. In the landmark judgment of K.A. Abbas vs The Union of India, the Hon’ble Apex Court held that pre-censorship is allowed as per Article 19(2), but the same has to be done by statutory bodies which are formed by the “State” as per law. It was also laid that statutory bodies will have to lay guidelines and clearly express what would not be permissible. The Court, while getting into the debate of free speech and hate speech, fails to observe that no such guidelines have been formulated as of now. The apex court could have directed the appropriate statutory body/executive body to con-sider the prior restraint position and take appropriate action instead of venturing into the content editorial domains. No matter how one justifies it, Sr. Counsel Shyam Divan’s submissions that a constitutional court should not enter into the fields of content regulation are legally sound.

In this case, the Ministry of Information & Broadcasting, News Broadcasters Association and the Press Council of India were asked to reply, but the order was passed before they could submit their response. Simply put, no stakeholders – including the judges – could examine whether the impugned show could be termed as “hate speech” before the voice was muffled.

On a petition seeking similar reliefs in Delhi High Court, the Ministry of I&B, in its order dated 9th September 2020 refused to ban the show and stated that if the show violates the Programme Code under the Cable Television Networks (Regulation) Act, suitable action will be taken.

Jurisprudence on Prior Restraint: Bypassing the Statutory Mechanism

Delving into the jurisprudence of Prior Restraint, we shall start with the gold- en words of Mr. William Blackstone which strike at the heart of the current issue:“The liberty of the press is
indeed essential to the nature of a free state”. He emphasized on laying no previous restraints on publication, rather punish the publisher after publication, as per the established law. In Patter- son vs Colorado [205 U.S. 454, 462], Holmes J. of The Supreme Court of The United States, while referring to the cherished First Amendment of the American Constitution stated that it was passed to prevent previous restraints upon publications. Article 5 of the Basic Law for the Federal Republic of Germany and Article 21 of The Constitution of Japan guarantees Freedom of Speech and Expression and prohibit censorship of any kind, categorically that of the Press. In India, there are a plethora of cases which have held that prior restraint orders shall not be passed. While hearing a PIL filed by the NGO Common Cause in 2017 praying for regulating the content of the media, the Hon’ble SC had opined that pre-broadcast or pre-publication censorship is not the business of the Court and that all grievances against objectionable content will be dealt with in accordance with the law of the land after its publication.

The Counsel for the retired civil servants who intervened in the matter had argued that “hate speech undermines free market place of ideas”. Quite interestingly, in a blog, while defending free speech and criticizing blanket gag orders by the Apex Court, he had written: “Prior restraint is considered especially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere.” Subsequent to this, he also wrote: “we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech”. In another blog titled “Judicial Censorship: A Dangerous, Emerging Trend”, the Counsel had vehemently opposed the “trend” where Judiciary is passing gag orders which as per him is outside of the powers given to them by the Constitution of India. We, lawyers, have often been blamed for being biased towards our cause before the bench even though academically and legally we hold contradictory positions. But contradicting oneself with recorded writings is an insult to one’s own intelligence both as an academician and a lawyer.

It was argued that concession could be made in case of “hate speech”, which is distinguishable from “offensive speech”. For the sake of argument, even if we consider that the impugned show comes under the purview of hate speech, then also it has to be dealt with in accordance with the law. In Pravasi Bhalai Sangathan vs U.O.I. & Ors., the Hon’ble SC had laid: “As referred to here in above, the statutory provisions and particularly the penal law provide sufficient remedy to curb the menace of “hate speeches”. Thus, person aggrieved must resort to the remedy provided under a particular statute.” The precedents pertaining to categorization and classification of “hate speech” needs to be settled as well. Hate speech is an offence but dictating ‘prior restraint’ rationale akin to qui timet in the particular instance sets a dangerous precedent.

Observations of the Bench During Proceedings (Related to Constitution of a Committee of 5 Distinguished Individuals)

On Tuesday, in addition to free speech, self-regulation and legal restraint, the Court ventured into issues of ownership models of TV channels, revenue generation and the number of advertisements that the government gives to them. The discussion soon moved to the possibility of constitution of a committee of “distinguished individuals” to frame guidelines for the electronic media. Both the observations are deeply problematic because it’s not the domain of Judiciary to keep a check on the revenue model of media houses. The observation of the commis-be a case of judicial overreach.

Appointing committees and framing of regulations is a legislative and executive function. If someone believes in the idea of democracy, the concept of distinguished/eminent personalities can’t be said to conform with the high standards of constitutional democracy.

Hon’ble Justice Chandrachud observed that a pre-publication restraint is one of the rarest rationales to be exercised under extreme recourse and can take the Court down a slippery slope. The Court expressed its anguish but yet the gag order was not vacated and instead it went ahead with segments of content editorial suggestions. If one were to infer a ‘collateral bar rule’– which prevents any challenges to a court order if the party disobeys the order before first challenging it in court – arising out of such steps in the Indian context, it sets a duty of absolute obedience notwithstanding any constitutional rights un- less the concerned order has been set aside by a higher authority.

To conclude, the Court’s order of prior legal restraint is problematic in light of the availability of an alternative remedy under various Acts and the settled jurisprudence pertaining to the issue. It interferes with the people’s right to know. Moreover, it’s not the domain of Judiciary to keep a check on the revenue model of media houses; and the observation pertaining to the constitution of a commission, in our humble opinion, will be a case of judicial overreach.

Siddharth Nayak is Managing Partner, Atharva Legal. Vijay Tyagi is LL.M, Constitutional Law, Indian Law Institute and ex-LAMP Fellow. Krishnagopal Abhay is a 2nd-year student of LL.B at Campus Law Centre, University of Delhi.

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Opinion

Cold War 2.0 is here

Joyeeta Basu

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The battle lines are drawn. If anyone still believes that the world has not got divided into two blocs and the icy winds of Cold War 2.0 are not freezing relations, needs to take a look at the speeches delivered at the United Nations General Assembly this week to know which way things are headed. The UNGA is commemorating 75 years of the end of the Second World War, or “World Anti Fascist War” as Chinese President Xi Jinping termed it in his speech. On this forum the contours of the new world order are becoming clearer—a broadly bipolar world inside which multi- polarity functions. One of these two poles is occupied by communist China, while the other by the world’s premier superpower, the United States. China has pushed the world towards bipolarity, with the ultimate aim of fashioning a unipolar world where it is the sole imperial power and everyone else vassal states. At the UNGA, it was surreal the way Xi Jinping went about projecting himself as the global statesman in his speech, when the reality is a world harried by China’s misadventures, its push for influence, its debt trap diplomacy, its spying, its attempts to subvert democracies, its refusal to take responsibility for the coronavirus pandemic, its malignant and authoritarian core. In fact, almost everything Xi said can be countered as China doing exactly the opposite on the ground. He talked about countries sharing a “common future”;
about no country gaining from “others’ difficulties”; on why the world should avoid a “beggar-thy-neighbour policy”; “pursue win-win cooperation”; “rise above ideological disputes and do not fall into the trap of clash of civilizations”; that he is not interested in “cold War or hot war”, and so on and so forth. It was bizarre! In a not so-concealed barb at US President Donald Trump’s “America First” policy, the Chinese President added, “burying one’s head in the sand like an ostrich in the face of economic globalization or trying to fight it with Don Quixote’s lance goes against the trend of history”—it’s a different matter that this can be taken as an implicit admission of China being in economic trouble because of the trade war unleashed by Donald Trump. At the other end of the pole, the US President launched a no-holds-barred attack on the “invisible enemy” that is the “China virus”.

He compared the “mobilization” against the virus in his country being the “most aggressive” “since the second world war”, thus placing Xi Jinping’s China firmly in the company of Hitler’s Nazi
Germany—a comparison Xi has been attracting from many quarters courtesy his aggressive, expansionist policies and his treatment of minorities in his country. As for Russia, its President Vladimir Putin too did not mince words in identifying the United States and its al- lies as being the adversaries, who are not paying heed to Russia’s appeal for “mutual restraint” with regard “to deploying new missile systems”. Countries such as Cuba, Venezuela and Iran went a step further to denounce the “hegemony” and “imperialist ideas” of the US, apart from labelling it as the “greatest danger to international peace and security”—language that is straight out of the Cold War playbook. Interestingly, all of them talked about a multipolar world, while throw- ing their lot in with China, in what will likely be a unipolar world if the Chinese achieve their objective of displacing the US as the world’s number one superpower. And now the most important question: which side does India go with, now that Cold War 2.0 is here? While multipolarity is a good intention, the reality is bipolarity, and sooner or later, reality will clash with the intention. Will India stop waffling then? Will India choose correctly? Which way should India go? With the authoritarian and its rag-tag bunch of bankrupt dictatorships and losers of Cold War 1.0? Or with the free world that is trying to come together to take on the most malign power that this globe has witnessed in several decades, a power that has India’s dismemberment at the core of its Asian policy? The answer is a no- brainer.

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