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Facets of education in Covid times: Discretion, dilemma and constitutional mandate

Tamanna Chandan Chachlani

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The world is readjusting itself with Covid-19. We are slowly moving towards finally accepting what might be the “new normal”. The pandemic has made nations reflect on their failings as providers to the people and also made us re- evaluate the concept of welfare state.

Jurisprudentially, the concept of state has undergone several changes and dilemmas to reach the point where we are today. There has always been an imbalance between state’s interests and individual interests. The pandemic also added to this imbalance and it was seen in the way different nations adopted different approaches to deal with the pandemic.

One of the most affected sectors globally has been the education sector. The United Nations Report titled “Education during Covid-19 and beyond” published in August 2020, states that the pandemic affected 1.6 billion learners in more than 190 countries. Closing of schools has affected 94% of the world student population and 99% world student population from the lower and middle income groups.

The statistics are not only alarming but also throw light on the state of education in various countries, the failure to provide for better access to education which also is a Constitutional mandate in most of the countries across the world. With education being affected, the report also suggested that most of the youth population might drop out from schools next year due to the economic crisis this pandemic has brought along.

Given the dire situation of online education most of the countries opted for a physical reopening of educational institutions in a phased manner by ensuring all the protective measures in place.

INDIAN SCENARIO

Schools in India were shut since mid March and only some of them could go online. Given the lack of technology penetration at grassroots level online schooling was not a viable option for everyone.

The Ministry of Human Affairs issued detailed guidelines for reopening of schools from 15th October. However, the States were given the discretion depending upon the Covid-19 situation in the given state. One of the highlights of the guidelines was that the students cannot be forced to attend school. The parents will also have to give a written consent for the child attending the school which is mandatory.Various states have given a green signal for the schools to be reopened and many plan to do so.

Andhra Pradesh is one of the states which allowed for physical reopening of schools, this led to a spike in Covid cases. 575 Students and 829 teachers were infected. However the authorities are not keen on shutting the schools because the cases are really low in terms of the student population who are attending schools. The Government states that online education has really affected the students who are not economically well off to afford technology which is why it is important to keep the schools running.

However, should this approach towards students and teachers being affected by Covid be encouraged?

Access to Education as a Constitutional mandate:

The Constitution of India has guaranteed fundamental rights to its citizens, right to education is one of them.Shutting of schools has severely affected access to education. As per UNESCO report, 14 Crore students from the primary and 13 crore students from the secondary sector have been affected. Various governments have taken initiatives to boost education in the country. With the formal recognition of education as a fundamental right in the Constitution it was important to make it available especially during the pandemic.

The Government of India launched various initiatives like the SHAGUN online junction which comprises DIKSHA platform, e-pathshala and National Repository of Open Educational Resources (NROER). The role of these platforms is to give access to various audios, textbooks and other educational content for students free of cost.

SWAYAM is another program for students of 9th to 12th standard with study materials for graduate level entry preparations. This is in collaboration with various regulators like University Grants Commission, NCERT, AICTE, National Programme on Technology Enhanced Learning (NPTEL) and many others. Apart from giving access to online portals, the government has also taken initiatives to reach the students via television with the launch of Swayam Prabha, which is a collection of 32 educational DTH channels for students.

This pandemic has pushed the education system to go digital however, India doesn’t seem quite ready for the same. According to a survey only 25% of urban households and 15% of rural households have access to the Internet, which has highly affected the access to education during this pandemic. Various schools and universities across the country aren’t equipped enough to go digital. This pandemic has shed light on our improper execution of various schemes and laws that have made us rethink where we stand on providing access to education.

Is reopening the solution to the problem of access to education?

Keeping the above mentioned points in mind, physical reopening of schools will create a better access to education than any other mode. However, the current situation is proving to be fatal from both ends. Reopening has led to a surge in cases with students affected and few of the teachers having lost their lives to the virus. Still various states have made a decision to reopen the schools in the near future by ensuring all the safety protocols are followed.

However, since the guidelines give a discretion to attend offline schools, it has also affected the access to education as health remains an equally legitimate concern. Two of the important rights of the Constitution are at crossroads during this pandemic. Whereas access and right to education is affected, the right to health has become a primary concern for many.

In a survey conducted by Local Circles it was found that 71% parents will not send their kids to school even if they reopen, 20% parents were willing to do so and the remaining percentage of parents remained undecided on the matter. The state Governments are also consulting parents and parent associations before reopening of schools and majority of them believe it is not a good plan to reopen. Teacher’s associations across the country have also had a similar stance on the situation. And the results in Andhra Pradesh only add to the pre existing anxiety and notions of surge in cases after reopening of schools.

INTERNATIONAL SCENARIO

Europe has emerged as an epicenter for the second wave of mutant coronavirus. However, schools have still remained open in some of the European countries despite the second wave.

Denmark was one of the first countries to reopen its schools. The reopening of schools took place in phases with all social distancing norms in place. The schools also gave an option to high risk reachers time teach classes using the online platform hence reducing contact. This model works well for Denmark because the population is optimum. In comparison, India has the world’s second highest population, we also lack the infrastructural developments like proper hand washing facilities, washrooms in schools and the like.

Taiwan also reopened its schools and colleges. The use of technology aided with masks and social distancing measures and sanitation measures is what has worked for Taiwan. Providing shields, mask holders, online classes for confirmed cases of Covid students, quarantine measures, role of parents in assisting the school authorities by doing temperature checks on their children and maintaining a record are some of the measures Taiwan has implemented.

Various universities like Harvard chose to go online for the academic year, given the diverse influx of students which would make it difficult to control the spread of the virus. The US has also seen a surge in cases after reopening of schools with teen population being most affected.

CONCLUSION

It is really a matter of policy and great implementation whether or not schools should be reopened. In the Indian context, they posit various challenges. The current online scheme isn’t for everyone which is creating a greater disparity between the rich and poor. The pandemic has given impetus to boost our technological developments and also highlighted the key areas in education sector which need to be focused upon. Digital India is the most talked about however, we need to reach to the grassroots level to be a truly digitized nation.

The Constitutional mandate of access to education is at crossroads to the right to health in today’s times. The decision of Andhra Pradesh Government to not shut the schools even after so many reported cases although significantly lesser than the compared statistics of the state isn’t a just one. These students are the future of the country. Mental health concerns should also be considered. Going to schools in a pandemic can create severe mental strains on the developing minds. Again, the discretionary nature of guidelines stands at conflict with the access to education. It also reflects the class struggles, parents who can afford internet would not risk sending their child, however, at the grassroots level parents who can’t do the same have no option but to send their child so that lack of education does not become a barrier later in life.

RECOMMENDATIONS

Need for mental health counselors at schools at every level is extremely important especially during and after the pandemic.

The Government should take initiatives to boost online education at places where there is a lack of access to Internet infrastructure.

A proper policy for online education targeting different sectors of the society needs to be formulated.

NGOs, edutech companies, social activists, bureaucrats, panchayats, gram sabhas should play an active role in assisting the implementation of the policies for education.

If schools are to reopen we also need to develop proper infrastructure and facilities for ensuring minimum risk. Availability of washrooms, soaps, sanitizers, masks needs to be ensured. People from the society, companies, NGOs can collaborate with the Government or with each other to ensure proper supplies to schools especially in underprivileged areas.

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Opinion

A PAGE FROM A REPORTER’S DIARY WHILE COVERING THE VAJPAYEE PRIME MINISTERSHIP

Priya Sahgal

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There has been a lot of focus on the Vajpayee era recently because of two books that have recently been published: Vinay Sitapati’s Jugalbandi: The BJP Before Modi and N.K. Singh’s Portraits of Power that refer to the said period. I too recall covering that period as a young reporter for the Sunday magazine (and later on Aaj Tak and Outlook). There are many books on the Vajpayee era but since he did not write an autobiography (unlike L.K. Advani) or commission one, it is very difficult to get an insight into what he was feeling at critical junctures of his prime ministership—or indeed most of his life. And unfortunately, most of his PMO and some of his closest friends are no more, from Brajesh Mishra, Ashok Saikia, Jaswant Singh, Bhairon Singh Shekhawat to George Fernandes. His family has also decided to let his legacy speak for itself and has not contributed to any of the books on him so far.  

Which makes it all the more difficult to decipher a man who was so much larger than life in the public sphere. I recall covering his PMO, an office he presided over with a benign grandfatherly presence, leaving the nuts and bolts to his Principal Secretary Brajesh Mishra. As all PMOs reflect the personality of the Prime Minister, so did this one—accessible and warm but also capable of issuing harsh snubs to those who crossed the line. The PM’s personal secretaries, initially the politically astute Shakti Sinha, and later on the dapper duo of V Anandrajan & Ajay Bisaria as the private secretaries, brought their own charm to covering the PMO. Since Ajay Bisaria came to the PMO straight from the IFS, he had a chart of all the names and pictures of the entire Cabinet under a glass top on his desk to help him send the right person into the PM’s office. But it’s not the PMO but the PMR that has the warmest memories for the television beat reporters forever parked outside Race Course Road (Vajpayee preferred to work from there instead of South Block). For, though this was one Prime Minister who took his vacations, his winter holidays were always jinxed with some crisis or the other. And so, on those cold winter nights, waiting outside Race Course Road, some reporter or the other would end up calling the PM’s residence with a fervent plea. And sure enough, tea and samosas would soon be sent for the entire media. Some gestures you do not forget. 

New Years would begin with the PM’s musings from Kumarakom where he liked to spend the year-end. Since the PMO went with him, one would be SMSing ‘sources’ for any indication of what was on the PM’s mind, if not his mind, then his mood! But being a beat reporter what one loved were the summer breaks, for then Vajpayee would go to Manali for a few days, and the rest of us would follow, OB vans and all. Holi was also open house at Race Course Road for both the media and the Cabinet where one could catch Yashwant Sinha breaking into an impromptu dance. And then of course there was always the Kavvi Sammelan organised by the irrepressible Vijay Goel on the PM’s birthday who just wouldn’t take no for an answer. In fact, this was standard routine. Every year Vijay Goel would propose a kavvi sammelan and the PM would refuse. But Goel would just say “Haina jee” (ok) and go ahead and print the cards and then tell the PM, “but the cards have already been printed”. And that was that. 

Despite the informal air of bonhomie, this was also one of the most pro-active PMOs since Rajiv Gandhi’s time. I recall mentioning this to Brajesh Mishra who countered with a “is that a criticism or praise?” It’s not as if South Block was ignored for that is where the media often dropped in to meet the affable Ashok Tandon (also known as “Tandon-from-Landon” due to an earlier stint there with PTI). Tandon had the tough job of placating media egos—who were demanding everything from an exclusive interview to the right to be able to carry mobile phones inside the PMO and not having to leave them at the reception. However, not many got to meet the low-profile Ashok Saikia who kept away from the limelight but his was one view the PM valued, for Saikia called it as it is. This included his perpetual air of amazement at some of the stunts politicians would pull just to get the PM’s attention.  

Into this mix was brought in N.K. Singh with his Hermes ties and Kishori Amonkhar CDs. He tested Brajesh Mishra’s patience by waiting almost six weeks to get his office redone before he shifted into it but his presence definitely added to the buzz in South Block’s corridors. 

Of course there were clashes—between Brajesh Mishra and Jaswant Singh on foreign policy, between Yashwant Sinha and N.K. Singh on the economic policy, and the perpetual standoff between the PMO and the Home Ministry. Not to mention the ego clashes between the GenNext of the time: Pramod Mahajan vs Sushma Swaraj vs Arun Jaitley (Narendra Modi was then CM of Gujarat and away from the durbar politics). Some were handled with a smile, some with a dressing down and others with a poet’s dexterity that left the other side guessing. In the end it all came together, because for Vajpayee this was not just an office, it was his parivar.

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Opinion

RCEP: Why PM Modi stayed out

Those who push for joining the RCEP forget that the economic pillar is not more important than the security pillar. Security consideration will always be, and indeed should always be, more important. Economic consideration can only come into play if it does not contradict security interests.

Sanju Verma

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India is one of the top countries in Asia with maximum number of FTAs (free trade agreements) either in operation or under negotiation or proposed. According to the Asian Development Bank Institute, as of now, India has 42 trade agreements (including preferential agreements) either in effect or signed or under negotiation or proposed. The major FTAs that India has signed and implemented so far include South Asia Free Trade Agreement (SAFTA), India-ASEAN Comprehensive Economic Cooperation Agreement (CECA), India-Korea Comprehensive Economic Partnership Agreement (CEPA) and India-Japan CEPA.

While India has gained substantially in terms of exports from its FTA with SAFTA countries, CEPA with Korea and CECA with ASEAN have been more beneficial to those economies. External Affairs Minister S. Jaishankar put it very succinctly when he said: “If we are to grow by leveraging the international situation, then you have to exploit the opportunities out there. Either you are in the game or you are not in the game. I would say that the era of great caution and a very much greater dependence on multilateralism, that era is to a certain extent behind us. We need to create those structural linkages between us and our neighbours so that they take care of political cycles and any volatility their politics may produce.” What Jaishankar implied was that while we as a nation need to build closer ties with our neighbours, blanket multilateralism is not necessarily the answer in the altered scheme of things globally.

Regional Comprehensive Economic Partnership (RCEP) was signed into existence by 15 countries led by China, Japan, South Korea, Australia, New Zealand and the 10-state ASEAN grouping, creating one of the world’s largest trading blocs. India had been a part of negotiations for almost nine years till it pulled out in November 2019, stating that inadequate safeguards and lowering of customs duties will adversely impact its manufacturing, agriculture and dairy sectors. Prime Minister Narendra Modi’s politics and his policies have always been driven by the “India First” motto and hence, the decision to withdraw from the RCEP was the right decision.

Many have opined that by staying out, India has blocked itself from a trade bloc that represents 30% of the global economy and world population, touching over 2.2 billion people. Did India do the right thing by pulling out of the RCEP? The answer is a firm yes. India has a bilateral trade deficit with most of the member countries of RCEP. India has already signed an FTA with all the countries of RCEP, except China. Trade data suggests that India’s deficit with China, with which it does not have a trade pact, is higher than that of the remaining RCEP constituents put together. This trade deficit is the primary concern for India, as after signing RCEP, cheaper products from China would have flooded the Indian market. Further, from a geopolitical perspective, RCEP is China-led and is intended to expand China’s influence in Asia. To deal with the imminent rise in imports, India had been seeking an auto-trigger mechanism. Auto-trigger mechanisms would have allowed India to raise tariffs on products, in instances where imports cross a certain threshold. However, other countries in the RCEP were against this proposal. Hence, India was absolutely right in withdrawing from the RCEP.

India had also reportedly expressed apprehensions on lowering and eliminating tariffs on several products like dairy, steel, etc. For instance, the dairy industry is expected to face stiff competition from Australia and New Zealand. Currently, India’s average tariff for dairy products is, on an average, 35%. The RCEP binds countries to reduce the current level of tariffs to zero, within the next 15 years. This would have clearly harmed India›s position, had India joined the RCEP. India was also concerned about a “possible circumvention” of what is called the “rules of origin”. Rules of origin are the criteria used to determine the national source of a product.

Current provisions in the deal reportedly do not prevent countries from routing, through other countries, products on which India would want to maintain higher tariffs. Hence, to join the RCEP, without the much-desired clarity on how “rules of origin” could be strengthened to prevent dumping by member countries, would have been against our national interests

You don’t get into FTAs merely to provide your market to your partner countries. While you accommodate your partner countries, your objective is also to increase the presence of your products in the markets of your partners. What is the option for India? Well, India, as an original negotiating participant of RCEP, has the option of joining the agreement without having to wait 18 months, as stipulated for new members in the terms of the pact. RCEP signatory countries said that they plan to commence negotiations with India once it submits a request of its intention to join the pact “in writing”, and it may participate in meetings as an observer prior to its accession. If indeed, RCEP resolves the thorny issues raised by India, given India’s economic clout today, then of course, India can always join the RCEP at a later date. But till those issues are ironed out to India’s competitive advantage, Prime Minister Modi has decided not to blink and, rightfully so.

India also wanted RCEP to exclude most-favoured nation (MFN) obligations from the investment chapter, as it did not want to hand out, especially to countries with which it has border disputes, the same benefits it was giving to strategic allies. India felt that the agreement would force it to extend benefits that it gives to some key allies, for sensitive sectors like defence, to all RCEP members. RCEP also lacked clear assurance over market access issues in countries such as China and non-tariff barriers on Indian companies.

Will the decision cost India and what will that cost be, if any? Well, India is one of the few countries where today we have to give our own industry a level-playing field at home. Building on national capacity doesn’t make you anti global. On the contrary, if you don’t have local capacities, you only end up as a market for other peoples› goods. If you want to actually participate more vigorously in the global economy, you must build stronger domestic capacities, and do what it takes for the gaps to be closed, as a result of years of disadvantage, thanks to inept and corrupt Congress led regimes, which ruled India for decades. Hence, the decision to pull out of RCEP will only strengthen India’s standing both economically and geopolitically, instead of it being an economic disadvantage, as is wrongly being bandied about. In the name of openness, we have allowed subsidised products and unfair production advantages from abroad to prevail. Those who say India should have joined RCEP, fail to realise that RCEP is not just about economic consequences, but political and geopolitical ones too. When India chose to stay out of the Belt and Road Initiative (BRI) in 2017, there was much rabble-rousing commentary that India might be isolating itself. Three years later, India’s position has been recognised by like-minded democracies and, many have said that Prime Minister Modi’s decision was so prescient and correct, in hindsight, given that BRI as an initiative is tottering today and has failed.

Some analysts who argue in favour of RCEP have said that “if you don’t want to be on the menu, you have to be at the table”. Well, India’s seat at the table as an “observer” is an important development, where New Delhi can make sure that it is not on the “menu”. Plus, India has enough financial heft to not become a part of the “menu”. Under the new Aatmanirbhar Bharat initiative aimed at self-reliance, we have a goal of making the share of manufacturing, 25% of our GDP. That is possible if we truly act on the “Vocal for Local” concept. It does not mean we have to be inward looking or simply resort to import substitution. Equally, we have to be cautious about where and whom we are building trade linkages with.

Those who push for joining the RCEP forget that the economic pillar is not more important than the security pillar. Security consideration will always be, and indeed should always be, more important. Economic consideration can only come into play, if it does not contradict security interests. The RCEP, if it works as designed, will make the countries of the region even more vulnerable to China’s economic and political coercion. Hence, India under Prime Minister Modi should actually be applauded for refusing to get bullied by an expansionist China that honey trapped many nations into, say, the BRI initiative. Today, many of those nations are ensnared in the Chinese debt trap, with no way out.

Indeed, it is China’s constant use of trade as a political weapon, and its unfair trading practices, that has led many countries to actively explore alternative supply chains. Yes, things will not change overnight but a beginning had to be made and by calling out China›s bluff on the RCEP, fair and square, Prime Minister Modi did what a lesser leader would not have even dared to attempt.

China represents a direct security threat to most of the countries in the region. That is one reason why Japan and Australia are understandably deepening their bilateral security engagement, why the Quad grouping has strengthened and why India welcomed Australia to the Malabar naval exercise. Joining a China-led trade arrangement simply because many others are doing it would be equal to cutting your nose to spite your face. Security is primary because it is impossible to pursue either economic well-being or any other value in its absence. Ignoring this comes at a cost.

Recent experiences with China itself should serve as a warning to most nations. China is a bully, with scant regard for territorial sovereignty of other nations. To expect China to become “a responsible stakeholder”, as US Deputy Secretary of State Robert Zoellick wanted China to become, by simply engaging in robust trade ties with the Chinese Dragon, is an illusion and a fallacy. China’s natural urge is to usurp and encroach. Why should India offer one of the biggest and fastest growing markets to RCEP on a golden platter, without concomitant economic and geopolitical benefits? Beijing never plays to the international script because its worldview is based on a fundamentally misguided assumption of international politics, in which conflicts and confrontation are the way forward. Consensus is an anathema to CCP. China has always felt and decided that others must listen to it. There is no mystery here. What Xi Jinping, however, never anticipated is the fact that Prime Minister Modi is not a pushover. PM Modi is an extraordinary leader who does not like being told what he should do, and rightfully so. Why should the leader of the world’s largest democracy be beholden to a trade arrangement that has the stamp of an authoritarian Chinese regime, with no concrete benefits for India?

Trade will increasingly become the new political weapon in the post Covid era, with global protectionism on the rise. India under PM Modi has always been an open, liberal democracy that believes in pluralism and inclusivity. Hence Prime Minister Modi’s decision to reject the RCEP in its current form is absolutely the right thing to do.

Thankfully, be it RCEP or BRI, PM Modi has never been mesmerised by the Chinese illusion. Currently, 127 countries and 29 international organisations are part of BRI, through which China has reportedly made investments of more than $90 billion to these countries and regions. In 2017, China imported intermediate goods worth $943.12 billion, with $302.31 billion coming from these countries and regions. What a China-friendly, Left-leaning global media will never tell you is the fact that Chinese banks are reeling under a debt burden of over $103 billion after being forced to indiscriminately lend to financially unsound BRI projects. What the leftist media has also not admitted to is the fact that most of the BRI countries together owe a debt in excess of $380 billion to China and that number is rising rapidly, every minute. China shares a border with at least 14 countries and has territorial disputes with over 21 countries. Given the aforesaid, unless a China-centric RCEP is amended, to ensure tariffs, cross-border flows and anti-dumping laws are calibrated to cater to India, which commands huge economic clout, thanks to Prime Minister Modi’s towering stature, staying out of RCEP, is more beneficial than staying in for the moment.

Sanju Verma is an economist, national spokesperson for the BJP and bestselling author of ‘Truth & Dare: The Modi Dynamic’

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Opinion

The power to levy penalty under the Code on Wages, 2019: Constitutional imperatives

Sudhanva Bedekar & Anoushka Modak

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In India, the post independence labour law regime has been influenced by the vision of the founding fathers, reflected in the Constitution, which calls for respect and recognition of the principles of dignity of labour and human rights. The expansive interpretation of the fundamental rights, more particularly, Article 21 concerning the right to life and personal liberty, have ensured that the rights of the labourers and those in the unorganized sector are protected and recognized. The directive principles of State policy also cast an obligation on the State to secure dignity of labour, equal pay for equal work, equitable distribution of resources and decent standard of living for the citizens. Labour being a concurrent subject, both Centre and States are competent to legislate on it. Thus, labour laws concerning different aspects of labour namely, occupational health, safety, employment, training of apprentices, fixation, review and revision of least wages, etc. were enacted by Parliament as also by the various State legislatures.

In 1999, the government set up the second national labour commission, headed by Ravindra Varma which recommended that all the labour laws must be compiled into four or five codes. A step towards fulfilling the recommendations of the commission, The Code on Wages was passed in August last year compiling four different labour laws namely the Payment of Wages Act, 1936; The Minimum Wages Act, 1948; The Payment of Bonus Act, 1965; and The Equal Remuneration Act, 1976 into one consolidated law.

Section 53 of the Code on Wages provides that an officer (not below the rank of an under-secretary) to the government will be notified with power to impose a penalty in the place of a judicial magistrate. In this article, we argue that grant of power to impose penalty on an officer of the Government is problematic and that Section 53 suffers from certain Constitutional infirmities. It is pertinent to peruse Section 53 of the Code. Section 53 reads as follows;

“53. (1) Notwithstanding anything contained in section 52, for the purpose of imposing penalty under clauses (a) and (c) of sub-section (1) and sub-section (2) of section 54 and sub-section (7) of section 56, the appropriate Government may appoint any officer not below the rank of Under Secretary to the Government of India or an officer of equivalent rank in the State Government, as the case may be, for holding enquiry in such manner, as may be prescribed by the Central Government.

(2) While holding the enquiry, the officer referred to in sub-section (1) shall have the power to summon and enforce attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document, which in the opinion of such officer, may be useful for or relevant to the subject matter of the enquiry and if, on such enquiry, he is satisfied that the person has committed any offence under the provisions referred to in sub-section (1), he may impose such penalty as he thinks fit in accordance with such provisions.”

It is thus clear that for contravention of clauses (a) and (c) of sub-section 1 of Section 54 or for contravention of sub-section (2) of Section 54, penalty may be imposed by the said officer appointed by the Government. Furthermore, such penalty may also be imposed for contravention of clause (7) of Section 56. A reading of these provisions reveals that the following violations are stipulated by them;

(a)- Non payment of amount due to the employee as per the provisions of the code

(b)- Contravention of any other provisions, rule, order under the Code (other than the contraventions expressly mentioned in the provisions of the Code)

(c) Non-maintenance or improper maintenance of records in the establishment.

(d) Non compliance with compounding order made by gazetted officer.

In our submission, Section 53 contravenes Article 50 of the Constitution of India. Though Article 50 forms part of the chapter containing the Directive Principles of State policy and is therefore not enforceable in a Court of law, it is clear that the principle of separation of powers has been recognised and enforced by the Courts and has also been used as a tool to strike down similar provisions.

Section 3(4) of the Code of Criminal procedure lays down clear demarcation of power between the judicial magistrate and the executive magistrate. It vests the judicial magistrate with the powers to examine the evidence, conduct trails which may expose any person to punishment or penalty or detention. Whereas the executive magistrate dispenses primarily administrative duties; it includes granting, suspension or cancellation of a licence and sanctioning or withdrawing from a prosecution. The function of the executive magistrates is administrative and limited to maintenance of law and order. Notwithstanding this, they also perform certain judicial functions such as obtaining bonds and security for maintaining good behaviour and peace under sections 107,108,109,110. They are also empowered to issue orders against any nuisance and apprehended danger and restore public tranquillity.

In the case of Mammoo vs. State Of Kerala and Anr the Kerala High Court was considering the question as to whether a District magistrate exercising functions under Section 16(1) of the Telegraph Act was an ‘inferior criminal court’. The Court took note of Section 3(4) of the Code of Criminal Procedure and held that the executive magistrates are to perform their functions as per the provisions mentioned in the code and if acting under any other law other than the code they must strictly adhere to the performance of executive or administrative functions. Since the enforcement of the Code of Criminal Procedure, there has been a complete separation of the judiciary and the executive. This has been done to implement the mandate of Article 50 of the constitution which contains a Directive Principle of State Policy that the State shall take steps to separate the judiciary from the executive in the public services of the State.

In Hanumantsing Kubersing vs State Of Madhya Pradesh  the vires of Section 21 of the Bonded Labour System (Abolition) Act, 1976 were under challenge before the Madhya Pradesh High Court. The said provision empowered the revenue officers designated as executive magistrates to try offenses under the Act. The Madhya Pradesh High Court struck down the said provision as it violated Articles 14 and 21 and was contrary to the principle laid down in Article 50.

The said provision was also struck down by the Madras High Court in the case of Union of India vs Gajendran wherein the Court observed, “By merging the judicial function in the executive, the basic structure of the Constitution is affected; justice and fair trial cannot be ensured by the Executive Magistrates in as much as they are not required to be legally qualified and trained persons and in actual practice are required to perform various other functions. Their powers under the Code are limited for the purposes of maintenance of law and order…’’

Again in Aldanish Rein v Union of India, a three judge bench of the Supreme Court, observed that the executive magistrates are under complete control of the executive government. Their promotion, increments and seniority of services, etc. are all dependent on their higher officers, who belong to the Executive.

The apex court in Statesman (Private) Ltd. v. H.R. Deb &Orsheld that ‘the appointment of a person from the ranks of civil judiciary carries with it a unique assurance. The functions of a Labour Court are of great public importance and quasi civil. Men of experience on the civil side of the law are more suitable than Magistrates. Persons employed on multifarious duties and also performing some judicial functions may not truly answer the requirement and it may be open in a quo warranto proceeding to question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other functions. For it cannot be denied that the expression “holding a judicial office” signifies more than discharge of judicial functions while holding some other office.’

Section 53 of the Code on Wages, 2019 does not confer upon the members of the executive, the power to conduct trials. Hence, it is possible to distinguish with the judgements of the several High Courts which have emphasized the need of separation of the judiciary and the executive. However, a perusal of the said provision indicates that a substantive power to arrive at the decision regarding innocence or guilt has been conferred on the government official. A residuary power to impose penalties for violations of the provisions of the Act for which there is no express provision made, have also been conferred on the executive official. This, in our submission, falls foul of Articles 14, 21 and 50 of the Constitution of India. In view of the settled jurisprudence on this subject, it is possible to arrive at the conclusion that Section 53 of the Code on Wages suffers from certain Constitutional infirmities.

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Agriculture Ordinances: HC directs Haryana DGP to implement police guidelines in D.K. Basu case during farmers’ protests

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In a latest, landmark and laudable judgement titled Haryana Progressive Farmers Union — Sabka Mangal Ho Vs State of Haryana and another in CWP No. 14874 of 2020 delivered just recently on September 18, 2020, the Punjab and Haryana High Court has directed the DGP Haryana to ‘sensitise’ police officials performing duties during these farmers protests against the three Ordinances regulating farming and agricultural sectors about the guidelines for police laid down by the Supreme Court in the famous DK Basu case. A plea was filed by the Haryana Progressive Farmers Union alleging that during the farmers protest against the Agricultural Ordinances on September 10, 2020, few unknown persons, some in police uniform and others without resorted to lathi charge to dispel the crowd. It is a sad commentary that even after 23 years of the famous DK Basu’s ruling, we still see that its guidelines are still not being implemented by the police in our country.

To start with, this noteworthy judgment authored by Justice Arun Moga of Punjab and Haryana High Court in oral first and foremost sets the ball rolling in para 1 wherein it is observed that, “Petitioner, a farmers Union, inter alia, seeks issuance of a writ in the nature of mandamus, directing the respondents, to ensure that police officers of all ranks while on law and order duty, particularly, during the mass protests/agitations, shall wear proper uniform with visible clear identification, their name tags with designations. Further prayer has been made that all the protestors detained or arrested, ought to be given immediate medical treatment.”

To say the least, para 2 then reveals that, “Learned counsel for the petitioner contends that, on 10.09.2020, when the farmers in Haryana, owing allegiance to the petitioner union, were on a protest rally, few unknown persons, some in police uniform and others without, resorted to lathi charge to dispel the crowd. He relies on the photographs appended with the petition, purported to be of the scene of occurrence. The farmers were protesting against three agriculture ordinances issued by the Government of India. In the said incident, numerous farmers, including many old aged, were allegedly injured by unknown police officials but even the basic medical care was not provided.”

Be it noted, para 3 then further reveals that, “Learned counsel relies on guidelines/safeguards laid down by Apex Court way back in year 1997 in “D.K. Basu v. State of West Bengal” 1997 (1) SCC 416. He contends we are in year 2020 and yet, 23 years later, the said safeguards are not being implemented in State of Haryana. Seeking compliance thereof, petitioner-Union submitted Legal Notice/Representation dated 12.09.2020 (Annexure P-5) but the same has not been adverted till date. Hence, the petition.”

Furthermore, while para 4 mentions “Notice of motion”, we then see how para 5 then discloses that, “Ms. Mamta Talwar, DAG, Haryana, who has joined proceedings on service of advance copy of the petition, appears and accepts notice on behalf of State of Haryana.”

For the sake of clarity, it is then mentioned in para 6 that, “Given the nature of order being passed, there is no necessity to seek any return and/or conduct further proceedings.”

Most significantly, it is then envisaged in para 7 that, “Directions issued by Apex Court and the envisaged procedural safeguards to be observed by police administration per D.K. Basu’s case (supra) are no doubt to be followed/implemented in strict letter and spirit. For ready reference, the relevant is reproduced here under:

“We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest, at the time of arrest such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

The requirements referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.”

In tune with the intent/ratio of the Supreme Court judgment, some of the above said preventive protections/directions, later on, by way of appropriate amendments in the Code of Criminal Procedure, 1973, have also been given legislative mandate.”

While disposing the writ petition, the Punjab and Haryana High Court then observes in para 8 that, “In the premise, without commenting on the merits of allegations/averments contained in the writ petition, the same is disposed of with a request to the Director General of Police, State of Haryana, to once again sensitize police officials of the state, on regular intervals, qua the aforesaid safeguards/parameters, to be followed by police officials while on duty. Regarding other allegations containing in the petitioner herein, the petitioner is at liberty to follow up its representation/legal notice, Annexure P-5, with the competent authority. Disposal of the present writ petition shall not be construed to mean that, if any genuine grievance is made out, the competent authority shall not look into the same. It is expected of the competent authority to pass appropriate orders qua Annexure P-5, in accordance with law, as expeditiously as possible.”

On a final note, it is then held in para 9 that, “In the parting, this court would also like to observe that the Director General of Police, State of Haryana, would do well by directing all the district police heads to ensure that a print out of all the 11 directions, per DK Basu, supra, are prominently displayed in a minimum font of 20 or 22, on a conspicuous notice board at the entrance of every police station in the State. Similar exercise, in fact, ought to be carried out in the State of Punjab as well. Registry is, therefore, directed to convey copy of this order to the Director General of Police, State of Punjab, who is also requested to do the needful, as aforesaid.”

All said and done, it is a no-brainer that the Haryana DGP must implement what the Punjab and Haryana High Court has held so clearly, cogently and convincingly on implementing police guidelines in DK Basu’s case and even the Punjab DGP is urged to do the needful just like Haryana. This will certainly ensure that the old and the weak are not unnecessarily lathicharged by the police which is the crying need of the hour also! No society and no country can ever progress where human rights are not respected in totality and so the human rights have to be accorded the highest priority always in our country. Even the Supreme Court will hear on October 7, 2020 the plea to revive DK Basu’s case to issue fresh guidelines to curb custodial torture. This is a very hot button issue and cannot be kept in cold storage any longer as it directly affects the people and agitates them when they see that the police beats them mercilessly without any strong reason! There can certainly be no denying it!

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Opinion

Poverty not a curse, sterling efforts needed to be wealthy

Mukesh Ambani has added a feather to India’s cap by figuring among the richest in the world.

Vijay Darda

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Let me tell you a story of Mukesh Ambani’s vision. Reliance Group has a huge petroleum refinery in Jamnagar, Gujarat. A large area was lying barren around it. Mukesh Ambani felt that if trees and plants are planted on this land, the pollution of the refinery can be absorbed. When Mukesh Ambani decided to plant mango orchard on 600 acres of barren land, people harboured serious reservations about the success of his project.

The soil of Jamnagar and the moisture there has salinity and the winds blow at a high velocity too. In such a situation, would it be right to plant a mango orchard? This was the question in everyone’s mind, but Mukesh Ambani had decided and insisted that only mango orchard would be planted there. That was in 1997. Today, after 23 years, the salinity of the soil has been controlled, the winds have been taken care of and there are more than 1.5 lakh mango trees of about 200 species. Mangoes from this orchard are being exported all over the world because of its unmatched quality. The name of this mango orchard in Jamnagar is ‘Dhirubhai Ambani Lakhibag Amrayee’. For your information, let me tell you that the word ‘Lakhibag’ was the name of a mango grove developed by Mughal Emperor Akbar near Darbhanga in Bihar.

I told you this story so that you can understand how important it is to have vision, devotion and dedication to your work to become rich. After all, Dhirubhai Ambani started his journey from zero and built a big empire on his own. After that, one of his two sons raised his empire and the other collapsed on the ground. It is clear from this that even if you get a huge wealth by luck, you do not necessarily climb the stairs of success. It takes strength, concentration and balance to climb. Just one mistake is enough to fall! Let’s just think of Tata-Birla, Ambani-Adani, Hinduja, L N Mittal or Sajjan Jindal, Singhania, Anand Mahindra, you will find that their family started from zero. Infosys is an excellent example of our times. Narayan Murthy had laid the foundation of Infosys with a capital of only Rs 10,000. Adani started from the very bottom. Today, their success stories are for all to see. It is obvious that all this does not happen by sheer luck. For this, action and vision are required.

Many people continue to criticise industrial and business groups indiscriminately. Be it Ambani group or Adani group or someone else. People do not miss any chance to say that the government has always been ‘favourable’ to them. To me, these are all stupid and meaningless outpouring. No one can become ‘Kuber’ only with ‘favours’. For that, capacity needs to be increased manifold. Do not discuss what kind of house Ambani lives in, by which aircraft he travels, how many vehicles he has and how the wedding took place in his house. If at all, discuss that Ambani has given work to millions of hands. India has advanced in the world of technology. Do you know that while some people swindled Rs 15 lakh crore of the banks, Mukesh Ambani does not owe a single rupee to any bank! Consider why Mukesh Ambani flourishes in every sector he enters? Be thankful to all these industrialists that they have played and are playing an important role in the country’s progress. When I see the tricolour waving at The Pierre, a Taj Hotel in New York, my chest swells with pride. Isn’t it a matter of pride that Tata bought a global brand like Land Rover?

I have close proximity to almost all the industrialists I am referring to here and I know their lifestyle very closely. Humility, spontaneity and focus are their greatest assets. They have not become rich in a day. They have achieved this position through hard work. Therefore, do not curse poverty. Poverty is not a curse at all. Poverty can be transformed into prosperity by sterling actions and efforts. I know hundreds of such administrative officers who were born in a poor family but are occupying high posts today. Babasaheb Ambedkar was also poor but due to his talent, he is remembered with reverence all over the world today. Our former President APJ Abdul Kalam is the biggest example of this. His father was a fisherman and Kalam used to sell ‘beedis’ as a child. He became the best scientist in the world and also adorned the country’s highest position. Lal Bahadur Shastri rose from poverty to become the Prime Minister of the country. M S Kannamwar who once sold newspapers, became the chief minister of Maharashtra. People like Jeff Bezos, Bill Gates, Elon Musk, Mark Zuckerberg have also risen from the state of extreme poverty to reach the summit. Former presidents of America, Bill Clinton or Barack Obama, hailed from very humble origins. Elsewhere across the world, there have been many prime ministers, presidents, industrialists, great writers and scientists who were born poor, but they overcame their poverty through their ability and reached the top. So don’t accept poverty as a curse, take your steps, develop your potential. Success is waiting for you! The need of the hour is dedication, out-of-the-box thinking and perseverance… So what are you waiting for!

The author is the chairman, Editorial Board of Lokmat Media and former member of Rajya Sabha. vijaydarda@lokmat.com

I congratulate Mukesh Bhai that he has not only joined the select list of wealthiest persons in the world with his devotion, dedication and vision but also made the country proud. True, if the capabilities are utilised to the full, one can scale the summit. Mukesh Bhai has proved his mettle and ability in every field.

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Opinion

Making it happen: Mission Kayakalp

Crackdowns and raids on illicit liquor makers and sellers in UP’s Barabanki district revealed some bitter truths. Many of those being arrested would go right back to their ‘trade’ after release. And, most of those involved were stuck in this trade due to lack of alternative sources of income.

Anil Swarup

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Illicit liquor is a massive social, economic and law enforcement nightmare across India. It has been known to destroy innumerable lives by death, criminal conviction, disability and addiction apart from ruining livelihoods, families and health. The brunt of this evil is most intensely felt by the poor and illiterate classes.

In January this year Dr Aravind Chaturvedi was posted as the Superintendent of Police of Barabanki, a district of UP adjoining its capital city Lucknow. Barabanki is a prosperous district but it has some great challenges. It is notorious for narcotics and illicit liquor. Hence, the first priority for Aravind on being posted there was to curb these criminal activities. 

Crackdowns and raids on illicit liquor makers and sellers across the district, revealed some bitter truths. Many of those being arrested would go right back to their ‘trade’ after release. And, most of those involved were stuck in this trade due to lack of alternative sources of income. Ironically, a few villages had almost all residents involved in illicit liquor making. The issues were discussed were discussed at length with colleagues. On ascertaining the details, they were able to spot a few villages which were worst affected. One of the places with highest concentration of such cases was a small village of Chaynpurwa in Ramnagar tehsil of the district. This became the centre of the initiative.

Chaynpurwa is a remote village, cut-off from the nearby suburbs on account of being surrounded by the expansive Bhagahar Lake on three sides. The people here had lost a lot to the illicit liquor trade. Out of the 94 families of this village, 32 women were widows. Only 6 men in the entire village were in a condition to work. The others were in jail, handicapped or heavily addicted. Most children didn’t go to school and those who did, faced economic hurdles and social stigmas. It was a painful sight.

Uplifting a village out of poverty is a difficult task, but lifting one out of the grip of crime and poverty is a much bigger challenge. Rehabilitation that was not considered a part of Police’s regular duty was initiated. It was initially frowned upon. However, soon the thought behind it and the prospect of improving the lives of people of an entire village came to be appreciated. The initiative soon got wholehearted support.

The first step was to organise a “Police Chaupal”, a gathering of all residents of Chaynpurwa and nearby villages, hosted by the local Police and attended by Aravind himself and Circle Officer, Ramnagar along with Inspector, Ramnagar. Villagers were given opportunity to speak about their problems, compulsion towards illicit liquor trade and socio-economic challenges. The stories that came out of the meeting were painful and heart-wrenching. “Mission Kayakalp” started taking shape consequent to this meeting

A survey of the village was conducted in Chaynpurwa village to obtain basic data about the village and its residents. This survey provided critical insights into the state of the village and its people. With the exception of 4 families which had at least one employed member, 90 of the village’s 94 families needed immediate assistance if they were to be emancipated from illicit liquor trade.

Priority now was to come up with a suitable, sustainable and circumstantially practical occupation alternative. A series of discussions with District Magistrate of Barabanki Dr Adarsh Singh, a passionate leader and Chief development Officer Medha Roopam, a bright officer brought forth a few options. Out of these, beekeeping seemed an appropriate and practicable choice. The villagers were briefed about this. A training session was arranged for them. Support also came from bank authorities who promised to provide loans. 

Dr Adarsh Singh’s support for Mission Kayakalp and his personal interest and backing to the initiative gave Chaynpurwa Village the attention and resources of 26 Government departments under the district administration. Medha Roopam herself went to the village with officials from various departments to make the residents of Chaynpurwa aware about Government schemes and programmes and provided eligible persons all the benefits.

The above events took place during the period between mid-August and mid-October this year. Bee farming in North India starts only after mid-November. Hence, an idea was mooted to help them generate some interim income through making and selling candles for the upcoming Diwali festival. This initiative was started and sponsored by Barabanki Police but Nimit Singh, an empathetic entrepreneur who owned bee farms, honey processing units and honey export played an important role

Nimit provided the women of Chaynpurwa training and raw-materials to make various types of diyas from bee-wax. The sale of these Diyas soared beyond expectations and close to 5 lakh diyas were sold in the weeks leading to Diwali. With a total amount over Rs 6 lakh earned by the village from these diyas in one month, an average income of Rs 7,000 was received by almost every household in the village. A grand “Deepotsav” was organised in collaboration with Umeed Foundation of Lucknow to honour and recognise the self-awareness and inspirational hard work done by the people of Chaynpurwa. For them it was an ecstatic moment to be the centre of focus of a program at such a scale and in the presence of top authorities.

The plan, alongside setting up bee-farming infrastructure, is to get a Community Hall built in the village so that a common space may be available for conducting training programs and provide an organised working area. Another plan on the anvil is to try and direct the energy of young children of this village in a positive, productive direction by arranging holistic orientations, building an open gym or recreation centre and motivate them to be diligent towards education. On the economic front with a long-term horizon, efforts are being made to attract the schemes of UP Government’s Khadi and Village Industries Board to provide a stable source of income to the village. These will include training them on electric pottery machines known as “Electric Chaak”, developing a stitching unit or a Agarbatti and candle making unit.

Setting up of a ‘trust’ by the name of “Chaynpurwa Kayakalp Foundation”, consisting of motivated private individuals for the welfare of villages like Chaynpurwa is also being planned. The objective is to provide sustainability to the project. Chaynpurwa village is on a path to turn its life around, look to a bright future and produce good law-respecting citizens. 

The initiatives taken by Aravind clearly demonstrate that despite enormous hurdles, if an officer so desires, she/he can make-it-happen.

Anil Swarup has served as the head of the Project Monitoring Group, which is currently under the Prime Minister’s Office. He has also served as Secretary, Ministry of Coal and Secretary, Ministry of School Education.

Uplifting a village out of poverty is a difficult task, but lifting one out of the grip of crime and poverty is a much bigger challenge. Rehabilitation that was not considered a part of police’s regular duty was initiated. It was initially frowned upon. However, soon the thought behind it and the prospect of improving the lives of people of an entire village came to be appreciated. The initiative soon got wholehearted support.

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