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The crisis of credibility facing Indian media

The phenomenal growth of the media in India, including the unregulated arena of social media, has brought with it a significant decline in accountability and reliability. A solution to this lies perhaps in the setting up of a new Media Commission.

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The media in India is facing an unprecedented crisis of credibility. Its exponential growth coupled with diminishing accountability has underlined the urgent need to draw up an agenda in the current scenario for the media to fulfil its constitutional obligations.

The media has a crucial role in promoting democratic and social values, waging a crusade against aberrations and imperfections in the polity and strengthening the edifice of democracy and ensuring good governance.

Article 19(1)(a) of the Constitution, guaranteeing the freedom of speech and expression, empowers the media to serve the people with news, views, comments and information on matters of public interest in a fair, accurate, unbiased, sober and decent manner. But the moot question in today’s context is about who will define the “public interest” and whether the media can be goaded to follow any selective interpretation of this phrase.

The government and regulatory mechanisms like the Press Council of India (PCI) think it imperative that the media learn to differentiate between matters of “interest to the public” and “those in public interest”, remaining unbiased not only in covering latest developments in political, social and economic fields but also in highlighting the real issues agitating the masses, such as economic disparities, social discrimination, gender inequalities, child abuse, sanitation, environment, poverty, unemployment, education and healthcare, rather than thriving on non-issues.

But this “imperative” too can’t be enforced either by law or through an executive order. The right to freedom of speech and expression under Article 19(1) (a) is limited by the “reasonable restrictions” contained under Article 19(2) on eight vital grounds on which laws can be made. But Article 19(2) in no way takes away the right of the media to promote its own interests within these reasonable restrictions, especially in this era of liberalisation.

In Bennett Coleman & Co. v Union of India, the Supreme Court held that freedom of press entitles the media to achieve any volume of circulation and freedom, both in its circulation and content.

In the landmark case of Sakal Papers v. Union of India, the Supreme Court held that the Constitution permits the imposition of reasonable restrictions only within the grounds expressly stated within Article 19(2). These include security of state; friendly relations with foreign states; public order; decency or morality; contempt of court; defamation; incitement to an offence; and sovereignty and integrity of India.

The apex court opined that if a law does not fall within these grounds and abridges the right to freedom of speech and expression, then it is liable to be declared void.

Several professional bodies, including the Editors’ Guild of India, are seriously concerned about the behaviour of a section of the media and the inevitable fall out of all this is that “others” now seek to regulate. The media industry too is not oblivious of the tremendous pressures to self-regulate and set its house in order.

The NDA government has been adopting a very cautious approach in dealing with the highly sensitive Indian media. So far it appears to favour persuasion rather than the imposition of statutory regulation in any form. Even the previous UPA government had been unhappy about a “free-for-all” in the name of free media.

Lord Denning, a famous British judge, in his famous book, Road to Justice, observed that the “press is the watchdog and that even the watchdog may sometimes break loose and has to be punished for misbehaviour”.

The government, which sometimes appears eager to rein in the media, may like to study the report of the Lord Justice Leveson public inquiry which was set up by then British Prime Minister David Cameron in the wake of the infamous phone hacking scandal. The Justice Leveson public inquiry was asked to look into phone hacking and police bribery by the News of the World. It alsoconsidered the culture, practices and ethics of the wider British media. The Rupert Murdoch-owned tabloid News of the World was found involved in the phone hacking scandal, which rocked the British government and jolted public opinion across the world. Several high-profile heads rolled when the story behind the scandal unfolded. The Justice Leveson inquiry recommended a statutory independent regulatory mechanism with powers to enforce its decisions on the media in all its manifestations. The report castigated the British media for its behaviour which it said often “wreaked havoc” in the lives of innocent people. 

The Indian media has also often drawn flak from various quarters for “sensationalism” and “trivialisation”. Intemperate language used by some politicians and social activists reflecting their gender and community bias has invariably underlined the need for the media to scrupulously avoid devoting precious time and space to “non-issues” which may be of interest to certain segments of the society but do not serve the public interest.

Several professional media bodies have been pressing for the setting up of a Media Commission on the lines of the First Press Commission and the Second Press Commission for an extensive review of the entire media industry. The proposed Media Commission may recommend, among other things, the setting up of a Media Council of India, replacing the existing Press Council, which has the mandate to regulate only print media. The jurisdiction of the proposed Media Council may include all types of media—print, electronic and the Internet/social media. But the idea has failed to take off in the face of stiff resistance from the industry.

The News Broadcasters Association (NBA), a private association of different current affairs and news television broadcasters in India, and the Indian Newspapers Society (INS), representing the print media industry, for long have enjoyed considerable clout in the corridors of power. Together they have been lobbying hard against the setting up of a Media Commission which may review the functioning of all segments of the media and address other important issues including cross-media ownership, paid news syndrome, press-politician relationship, monopolistic TV rating points, concentration of advertisement, the wage structure for employees in the media industry, etc.

The first Press Commission set up by the Nehru government in 1952 looked into the control, management and ownership, the financial structure as well as other aspects of the newspaper industry. It recommended the appointment of the Registrar of Newspapers for India (RNI), setting up of a Press Council of India and the enactment of the Working Journalists’ Act, besides other things. The Second Press Commission was set up by the Janata Party government, headed by Morarji Desai, in 1978. The Commission in its report wanted the media to play a responsible role in the development process. The Press Council of India was reconstituted as per recommendations of the Second Press Commission.

The media industry, both electronic and print, would like us to believe that the question as to how the media can and should focus its enormous strength and reach on developmental reporting and positive news interests could be addressed only through self-regulation. The Indian Broadcasting Foundation (IBF) is India’s apex organization of television broadcasters. It promotes the interests of the Indian television industry and provides a meeting ground to ensure that its members work in consensus to achieve common goals and have a common platform to air grievances and arrive at solutions. The IBF has adopted a programme code. It has empowered the Broadcasting Content Complaints Council (BCCC) to impose fines on TV channels found violating the programme code.

A few channels have already been faced with financial penalty for screening obscene content and directed to tender an on-screen apology for violating the programme code. The BCCC has also been regularly issuing advisories to TV channels cautioning them about their content, particularly depicting victims of incidents of rape and acid attacks on women and girls, stereotyping of women in general and the portrayal of minority communities. But all these measures on self-regulation appear “clumsy” and the paradigm of self-regulation needs to be strengthened by reviewing this model.

It is a catch-22 situation. Self-regulation without a statutory binding to enforce it among all the players of the game will be a half-hearted attempt to make the TV channels accountable to the people. And any legal framework would be rejected by the industry as violating the right to freedom of speech and expression. A way out has to be found for an effective and smooth functioning of the media as a potent weapon to strengthen Indian democracy. And then there is the phenomenal growth of the unregulated social media with the potential to breach privacy, create social disorder and pose a threat to national security.

An answer lies perhaps in the setting up of a Media Commission (another Press Commission) for a fresh look at the whole gamut of media functioning in India. It is the need of the hour. It may be headed by a sitting or retired judge of the Supreme Court of India and its findings binding on all the stakeholders. The proposed Media Commission may recommend a truly representative statutory Media Council in place of the existing Press Council. The proposed Media Council may encompass the media in all its dimensions with adequate provisions to enforce strict vigilance and discipline.

It may be possible sooner than later. What is required is a powerful public opinion in its favour and a strong political will on the part of our lawmakers.

The writer is a senior journalist and currently a part-time member of the Prasar Bharati Board. The views expressed are personal.

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Opinion

Pakistan should stop its fake narrative against India

Joyeeta Basu

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Something very intriguing is going on in Pakistan, which could have been dismissed as amusing but for the seriousness with which even the supposedly mainstream media in that country is peddling the fake narrative of “India-backed terrorism”. A quick glance through articles written by even well-respected geopolitical analysts in the Pakistani press will invariably locate mentions of the ISI-inspired canard of “Indian terrorism”. This media narrative has to be seen as an extension of the sudden spurt in Pakistani activities to promote internationally the fiction of India being a terror-sponsoring nation. Its failure to do so in the Kulbhushan Jadhav case has not deterred Pakistan. Instead, its activities have gained momentum in recent months. Consensus is growing in India about this being a result of the additional push to such efforts being given by Pakistan Prime Minister Imran Khan’s “new” advisor on national security, Moeed Yusuf. Last year, Pakistan had gone to the UN to get four Indian nationals sanctioned as terrorists by the United Nations Security Council resolution 1267. All four names were knocked out by the sanctions sub-committee—two in September this year and two earlier. Not having learnt its lesson, Pakistan has now fielded its Foreign Minister, Shah Mahmood Qureshi and the Director-General of Inter-Services Public Relations (ISPR)—ISI’s publicity wing—Major General Babar Iftikhar to release a dossier with the most ludicrous allegations against India. Pakistan presented the dossier to the UN Secretary General, António Guterres, this week, and the buzz is that it will present it to the incoming Joe Biden administration in the United States as well. It is a different matter though that the dossier being presented is being trashed by diplomatic and intelligence circles as full of outlandish claims and factual errors—even spelling errors!—and hence without an iota of truth.

This push also can be seen in the context of the exercise in propaganda mounted by Pakistan, post India’s abrogation of Article 370 in August 2019, and the rhetoric that Imran Khan often indulges in comparing India with Nazi Germany. It has to be admitted that when it came to managing the messaging post the Article 370 move and the passage of the Citizenship Amendment Act, the Indian government was rather late in realising that the narrative was getting hijacked, at least in mainstream western media, by the Pakistanis. In fact, Imran Khan went almost unchallenged in the US during his visit to the UNGA meeting in 2019, when he went around accusing India of the worst human rights crimes possible. The relative success that he got at least in the western media space, and also in a small segment of the US political space, would have emboldened him to believe that he can actually succeed in painting India as a terror state. But given the lack of interest even in the traditionally anti-India western legacy media, the whole exercise seems to have flopped—which does not mean that Imran Khan will stop trying. One of the main reasons he was selected as the Prime Minister by the military was the hope that he would be able to charm the West into getting Pakistan off the FATF grey list and loosen the purse strings of western nations and international institutions, apart from putting up a believable case against India on Kashmir and minorities. But the ageing playboy’s fading charm was not enough to rescue Pakistan, which continues to be on the FATF grey list. And now its economic situation is so grave that it had to run to the G20 this week to seek a debt relief of $800 million, in the company of 76 impoverished African countries—a G20, of which India is a part, and now the host of the 2023 summit! At least this should settle the case for those who still try to hyphenate India with Pakistan.

In short, Imran Khan has no choice but to continue with his ridiculous exercise against India, as that is one way of constantly burnishing his anti India credentials with the military, which is his boss. As the Opposition comes on the same platform of the Pakistan Democratic Movement, and mounts pressure on Imran Khan’s government, as well as on the military establishment, and as Pakistan slips into a state of penury, the anti-India noise will come in handy as a diversion to appease the domestic audience. Amidst this, even though Pakistan is at best an irritating sideshow for India, New Delhi should never lose sight of the fact the nuisance that Islamabad/Rawalpindi can be, especially when the latter has successfully sold to the Chinese the tall tale that it can be an effective counter to India.

Pakistan is a history sheeter, which has scorched its own record books by becoming the font of global terrorism and by perpetrating the worst kind of violence against its minorities. That Pakistan actually believes it can accuse India of all the crimes that it itself is guilty of, proves how highly this basket case of a country thinks of itself. It’s time it stopped punching above its weight.

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Opinion

Apocalypse at our coasts

World coasts are choking with garbage. Indian religious customs have treated coasts as sacred yet India is the 12th largest source of marine litter, which is projected to rise to the 5th place in just the next 4 years. The data obtained from the World Economic Forum suggests that this coastal litter could be much higher as 32% of all single-use plastic packaging escapes into sea directly.

Amita Singh

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It is almost three months since the Coastal Clean-up Day oath-taking ceremonies in September when “a trash-free coastline” was highlighted as the key task of a frontline environmental brigade of the government. Eight Indian beaches complying with the stringent Blue Flag certification criteria were recommended by the Centre for final consideration before an international jury. The results were announced in October but this important news passed away unacknowledged, almost muted and slipped the corners of mainstream Covid-19 management headlines. The news was about the honour which came to eight Indian beaches in a single attempt and which deserves applause and more serious attention than it has got so far.

No Indian beach had qualified for this certification so far and it was the first time that India became the first country in the world to receive the Blue Flag certification for not one but eight beaches. A Blue Flag certification is a voluntary eco-label for the cleanest and most developed coastal areas in the world, awarded by a Denmark-based jury of the Foundation for Environmental Education (FEE). An international jury comprising eminent members of United Nations Environment Programme (UNEP), World Tourism organization (UNWTO), FEE and International Union for Conservation of Nature (IUCN) bestowed the international honour upon Indian beaches. These beaches, as per the records of the Ministry of Environment, Forest and Climate Change (MoEFCC), are Shivrajpur (Devbhumi Dwarka, Gujarat); Ghoghla (Daman and Diu); Kasarkod (Karwar, Karnataka); Padubidri (Udupi, Karnataka); Kappad (Kozhikode, Kerala); Rushikonda (Visakhapatnam, Andhra Pradesh); Golden beach (Puri, Odisha); and Radhanagar (Andaman and Nicobar Islands). Yet the time to celebrate a “trash-free coastline” is still a far cry.

World coasts are choking with garbage. Indian religious customs have treated coasts as sacred yet India is the 12th largest source of marine litter, which is projected to rise to the 5th place in just the next 4 years. The data obtained from the World Economic Forum suggests that this coastal litter could be much higher as 32% of all single-use plastic packaging escapes into sea directly. Covid-19 has made matters worse by adding to this litter many truckloads of personal protective equipment (PPE), suits, masks, gloves and many other related stuff which tend to be discarded arbitrarily in an unregulated manner in most countries. Ironically, the sacred Ganges has been one of the biggest carriers of plastics to the ocean.

The global plastic footprint in marine areas is 8 to 10 million tonnes annually which is over and above the 150 MT of pre-existing plastics in the ocean. The National Oceanic and Atmospheric Administration (NOAA) of the US Administration is designing underwater robots to monitor and measure increasing underwater toxicity due to rise in debris collection at the ocean bed. In his warning piece ‘How to stop the sixth mass extinction’ on CNN in 2016, John D. Sutter had declared that soon there would be more plastics than fish in our seas.

There are some lessons to be learnt from the Blue Flag honour for Indian beaches. A synchronised effort of field authorities and local communities is needed with that of the Ministry (MoEFCC). It took over two years for the Beach Environment and Aesthetics Management Services (BEAMS) of the Society of Integrated Coastal Management (SICOM)under the MoEFCC to prepare a report on the beaches. These beaches were assessed in line with the UN Sustainable Development Goals. It was found that these beaches had substantially reduced the inflow of litter by 82% to 84% in less than 2 years of 2018-2020. An indicator called a beach litter measuring system (BLMS) conducted daily audits on plastic and other waste flowing into the sea. A segregated data about beach litter was put together and a feedback from tourists was obtained. The other indicators of assessment were beach amenities, waste management, renewable energy, recreational facilities, testing of bathing water quality, biodiversity conservation, safety, security and maintenance of beach ecosystems. Scuba divers brought data on coral bleaching, fauna and fish counts besides information on diseases which inflict the inner ocean life. An important factor which should have taken the shape of a mass movement was missing in much of the mechanically driven assessment, i.e.; the number of volunteers to sustain the gains and carry forward the benefits of clean beaches. Official records highlight that presence of Coast Guards and armed forces as key factors in coastal clean-up exercises but not more than 20,000 volunteers from across the whole country of 1.3 billion joined the clean-up and that too only on the clean-up day which is the 3rd Saturday every September.

Why are these close-to-life programmes not able to generate mass support and why coastal communities are failing to adopt clean-up as a lifestyle exercise. As prosperity of coastal belts increases the debris into oceans also increases. It is time the Education Ministry realises that one syllabus may not fit into the schools of the whole country. Syllabus should be geo-oriented which suggests that coastal schools should have more coastal biodiversity narratives. During the course of our visit to very highly rated and UNESCO award-winning schools in Kerala coastal belt during 2012-13 the 10th-12th standard students knew much more about American softwares than about the value of coasts. They had not heard of the value of backwaters in carbon fixation or planktons for oxygen supply. For most of them landslides were a natural phenomenon and had no connection to the cash-cropping and ecosystem changes in land usage. Also, those who knew that mangroves existed alongside the coasts, were not knowing the dangers from its extinction in the state’s coastline and the need to regrow them as West Bengal has initiated in the Sundarbans. While the city folks were upbeat on the growing number of fish in the coastal waters as given in the colourful bar diagrams of the Central Marine Fisheries Research Institute of Kochi, the fisherfolks clarified that the increase was confined to the small fish species which need more effort to catch and less returns in the market. They shared that almost 20 rare big fish species which were available to them in the coastal waters close to the beaches are now seldom found even several kilometres inside.

To make people understand that oceans are indispensable for us to survive is the key to their clean-up and conservation. Coasts are definitely choking and we are responsible for it since we taught the growing young citizens the cost of beaches and the land but not their value. Oceans supply us 60% of oxygen through phytoplanktons which are ocean-bed plants and grasses forming a marine food web. As phytoplanktons are reduced, fish is lost rendering billions of coastal communities into a severe scarcity of food resources and oxygen depletion subsequently translating into a variety of diseases and health problems. A dangerous move currently trending amongst food business companies is the 70% of the world surface lying unused, i.e.; the ocean bed which they wish to explore and exploit. This would be the death knell of the environment and food supplies to mankind.

While the eight Indian beaches have achieved the honour, it is now for the government to sustain this effort in the direction of the 14th Sustainable Development Goals which addresses the health of all forms of life under the ocean and humans on land.

The writer, former professor at JNU, is president of NAPSIPAG Disaster Research Group. The views expressed are personal.

The global plastic footprint in marine areas is 8 to 10 million tonnes annually which is over and above the 150 MT of pre-existing plastics in the ocean. The National Oceanic and Atmospheric Administration of the US Administration is designing underwater robots to monitor and measure increasing underwater toxicity due to rise in debris collection at the ocean bed. In his warning piece ‘How to stop the sixth mass extinction’ on CNN in 2016, John D. Sutter had declared that soon there would be more plastics than fish in our seas.

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Opinion

What we can learn from the United States’ withdrawal from World Health Organization

Chetna Alagh

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The United States was among the underlying allies for building up a worldwide office whose essential job is to immediate and facilitate global wellbeing framework inside the United Nation standards after the Second World War. World Health Organization was set up by the Constitution on seventh April 1948 with its fundamental goal as “the attainment by all people of the highest possible level of health.’ Its goal is to ensure that, “billion more people have universal health coverage, to act as a shield to billion more people from medical emergencies, and to provide a billion more people with better health and wellbeing”.

Under the WHO Constitution, it was founded in 1948 and is headquartered in Geneva, Switzerland. It is the UN agency responsible for global public health.

WHO with the commitment of its 194 Member States, across six districts, and from in excess of 150 workplaces has assisted with combatting transferable illnesses like — HIV, Ebola, intestinal sickness, tuberculosis, and numerous non-transmittable infections like-malignant growth and coronary illness. Since the start, the US has been a significant wellspring of surveyed and intentional monetary commitment towards its yearly subsidizing. The United States is the biggest contributor to the annual budget of the World Health Organization, 15 per cent of its total funding over the last two years has been solely contributed by them. In FY 2018–19 US alone roughly donated USD 450million.

But as the COVID 19 pandemic keeps to linger on worldwide, the main global wellbeing instrument devoted to planning a worldwide reaction by states appears to be stuck in a politicized issue, brought about by an antagonistic politicized atmosphere and a system with little oversight or response.

HOW THE WHO WAS FRAMED

Established in 1948, the World Health Organization is entrusted with advancing wellbeing and fighting sickness over the globe. In any case, countries had just been cooperating to determine general wellbeing emergencies sometime before at that point.

In the mid-1800s, cholera slaughtered a huge number of individuals across Europe as the advancement of railroads and steamships made it simpler for individuals to travel, and accordingly for this microbes and different irresistible infections to spread. Countries forced isolate measures, yet by the center of the century, their unfathomably contrasting reactions started to unleash devastation on worldwide trade.

European countries finished up in 1851 that they required a joint methodology and met the International Sanitary Conference to create normalized isolate guidelines. However, it took 40 years and seven gatherings to ratify the first international sanitary convention, in 1892.

The next decade proved more fruitful—to an extent. “The field of international health before World War II was a pretty fractured space,” says Alexandre White, an associate educator of humanism and the historical backdrop of medication at Johns Hopkins University School of Medicine in Maryland. While a couple of other general wellbeing associations started to jump up far and wide during the 1900s, they handled various needs, and correspondences among them were incoherent.

At long last, in 1945, another period of worldwide participation showed up with the establishing of the United Nations toward the finish of World War II. Nations expected that the war’s decision would bring another influx of sickness—much like World War I and the 1918 flu flare-up—and chose to consolidate their endeavors under one global wellbeing office inside the UN. On April 7, 1948, that office would come into power as the World Health Organization, situated in Geneva, Switzerland.

HOW IS THE WHO FUNDED?

There are four sorts of commitments that make up funding for the WHO. These are:

Assessed contributions are the dues countries pay in order to be a member of the Organization. The amount each Member State must pay is calculated relative to the country’s wealth and population.

Voluntary contributions come from Member States (in addition to their assessed contribution) or from other partners. They can range from flexible to highly earmarked.

Core voluntary contributions allow less well-funded activities to benefit from a better flow of resources and ease implementation bottlenecks that arise when immediate financing is lacking.

Pandemic Influenza Preparedness (PIP) Contributions were started in 2011 to improve and strengthen the sharing of influenza viruses with human pandemic potential, and to increase the access of developing countries to vaccines and other pandemic related supplies.

THE 2005 INTERNATIONAL HEALTH REGULATIONS AND THE WHO LIMITED POWER

The IHR was revised in 2005, in light of the 2002-2003 Severe Acute Respiratory Syndrome (SARS) epidemic, and the revision came into force in 2007. As the SARS scourge was not covered under the extent of the past adaptation of the International Health Regulations, of 1969, the global network met up for another instrument for planning reactions to new worldwide health care concerns.

The Indian Health Regulations establishes ‘ the key global instrument for protection against the global spread of infection’ as specified in its Preamble. Advancements were added into the 2005 amendment, for example, giving the World Health Organization (WHO) the abilities through its Director-General to announce a Public Health Emergency of International Concern (PHEIC), as given in Article 12. The motivation behind this arrangement was to educate the states regarding an ‘unprecedented occasion,’ as characterized in Article 1 of the IHR, that ‘comprise a general wellbeing danger to different states through the worldwide spread of sickness and to possibly require a planned global reaction’. It was obvious from the SARS plague that giving the WHO the authorization to alarm the global network of wellbeing emergencies with transboundary concerns was a significant measure to contain the emergency. It permits the worldwide network to make the underlying strides in planning a worldwide reaction against pandemics. In any case, such measure relies exclusively upon states giving brief and right data on wellbeing emergencies that break out in their domains.

The WHO, as an association, doesn’t have the power to accumulate data and information in every nation. All things being equal, the obligation to reveal data falls on states’ public specialists, as specified in Article 6 of the IHR. States are committed to advising the WHO inside 24 hours of ‘all occasions which may comprise a general wellbeing crisis of worldwide worry inside its region’. Notwithstanding Article 7 of the IHR, which expects states to ‘give to WHO all applicable general wellbeing data’ of ‘sudden or unordinary general wellbeing occasion inside its domain’ that could establish a global general wellbeing emergency. Despite the fact that the IHR permits the WHO to consider reports from sources other than states, as given in Article 9(1) of the IHR, the WHO is as yet needed to demand confirmation from pertinent state gatherings of those reports, as specified in Article 10 of the IHR. The only circumstances in which the World Health Organization could neglect state parties are in instances of non-coordinated efforts by the states, as given in Article 10(4) of the IHR

Consequently, without states proceeding with their commitments in compliance with common decency and giving resourceful data, the body planned as a center point to encourage participation in handling worldwide wellbeing emergency would be essentially nearly ‘dazzle’. This is particularly worried in occasions with any international threats, as it could end up disastrous for international preparation for pandemics.

The main reason for this is WHO’s lack of enforcement mechanisms when states breach the IHR. Breaking the IHR doesn’t prompt approvals, notwithstanding WHO proposals being non-official, there are no connected direct legitimate ramifications for overlooking them. The main solution for debates, as given in the IHR, is the question settlement component as provided by Article 56. At the point when states have questions, the two of them may consent to parley, then again, a debate between the WHO and states are submitted to the Health Assembly. Nonetheless, this provision has never been used till date.

Therefore, the current system to shield the worldwide network from a worldwide pandemic depends entirely on states regarding what is committed to them in compliance with good faith. Thus, tricky unresolvable questions could emerge when states blame different states for not doing as such.

GOOD FAITH IN |INTERNATIONAL LAW

In the current mechanism where the monitoring of disease depends totally on states’ inclination to cooperate, it is vital to revisit the significance of good faith for international law. Great faith as a “general rule” establishes a piece of the wellsprings of global law. Without great faith systems gave by International wellbeing, guidelines are non-utilitarian. It is in this way significant for states and the World Health Organization to have confidence in one another. It is significant not to disparage the significance of sincere trust in the working of systems, for example, IHR. However, possibilities of sincere trust collaboration can appear to be hindered in exchange wars, intermittent one-sided utilization of power and the general pushback against global foundations. Be that as it may, confronted with explicit difficulties, for example, the overall spread of illness, worldwide unsteadiness must be settled in cases.

THE US AGAINST THE WHO AND CHINA

An ongoing model that got ugly is the US-China circumstance with the WHO. The debate created to its pinnacle when President Trump proclaimed in a question and answer session that the United States would end its relationship with the WHO. The US government finished beginning the proper cycle of withdrawal by sending a letter formally informing the United Nations. This happens considering the United States government freezing financing to the WHO, and taking steps to do so forever. The United States blamed the Chinese government for not alarming the global network sooner, in view of concealing the underlying stages to the COVID 19 pandemic. President Trump likewise said that he doesn’t really accept that the numbers answered to the WHO by the Chinese government with respect to the COVID 19 pandemic. Furthermore, the Trump organization guarantees that the WHO is under China’s political impact, which brought about its inordinate trust in China’s underlying stage data of the COVID 19 pandemic’s spread. This had raised political pressures between the two significant powers considerably further, after late continuous exchange wars, the disappointment of the G7 meeting over naming the infection, and the circumstance of ‘broadened security control’ over Hong Kong. The United States rethinking its participation to the WHO could bring about disaster and sabotage the reason and extent of the IHR, by debilitating the worldwide exertion in fighting the COVID 19 pandemic.

AN UNFAVORED DECISION

Trump’s move was slammed by critics for pulling out the assets at the mid of such novel pandemic. US wellbeing specialists have censured this choice by communicating the requirement for a worldwide body like WHO to manage connections among nations and keep the information streaming. The UN Secretary, General António Guterres has likewise reprimanded this abrupt move, saying, there’s no such an ideal opportunity to end the assets to the WHO and full help must be given from each conceivable source, else it will get difficult to win the battle against the progressing COVID-19 pandemic. He further added, “the global network should cooperate in solidarity to stop this infection.”

The end of participation will be a yearlong cycle as different elements are required to emerge. Right off the bat, a one-year earlier notification should be given by the part states before withdrawal and no further change should be possible on the guaranteed willful assets. The US Presidential Election in November 2020 is another factor which can block Trump’s choice. As now Joe Biden has won the elections, the US will hopefully remain as the member of WHO as Joe Biden has publicly announced to reverse the withdrawal order.

The impact of this huge step can be seen in the loss of collaborations. US health researchers and experts are also indulged in many policy-making and research bodies of the organization. Many of the US researchers are members of WHO’s advisory body, counting those on the novel Covid-19 pandemic. US establishments work with WHO through teaming up focuses to notice flu and help with creating antibodies. The end will float separated the enduring coordinated efforts between the two of them. Innumerable wellbeing strategy specialists, disease transmission experts, and other visiting researchers of the US depend upon their WHO’s partners for vital data while many works with the association itself. After this decision, there has been seen a huge impact on the 80 official collaborative centers in the US. The jobs of all such health experts are drained indirectly eventually striking the position of the US in front of the world.

US government outfits 19% of the yearly spending plan for handling HIV, malaria, tuberculosis and immunization preventable infection like measles; 27% of the spending plan for polio annihilation; and 23% for other wellbeing crisis activities.

Every one of these activities has contracted up because of the absence of appropriate financing which further has flooded the tallies of death and enduring far and wide. Benefits procured through great many inoculation camps has been lost inside an eyeblink. The venture made by the US from the earliest starting point is of no utilization anymore.

WITHDRAWALS

The U.S. has a background marked by pulling out from global associations. It pulled out from the International Labor Organization in 1977, however, rejoined three years after the fact. It pulled out twice from UNESCO, first under then-President Ronald Reagan in 1983, and afterwards in 2017 under Trump. In 2018, it pulled out from the United Nations Human Rights Council.

The U.S. would not be the primary country to pull out its WHO participation. In 1949, the Soviet Union and a few other Eastern European nations including Albania, Bulgaria, Byelorussia, Czechoslovakia, Hungary, Romania, and Ukraine, sent WHO notices of withdrawal, communicating disappointment over the organization’s work and the U.S. influence on the WHO.

Around then, George Brock Chisholm, WHO’s first chief general, contended that the WHO’s constitution did exclude any arrangements for a withdrawal, and suggested that the World Health Assembly list those nations mentioning withdrawal as non-dynamic individuals all things being equal. This permitted the nations to effortlessly continue their enrollment to WHO in 1955, with WHO permitting them to pay just a level of their back of their dues.

A WAY FORWARD

To address the absence of global oversight components, we could set up audit meetings of states that are held consistently for the IHR, where states could meet routinely and hold surveys of one another occasionally. This would help the worldwide wellbeing system in adjusting to advancements in worldwide the study of disease transmission, innovation, science, and governmental issues. The current system doesn’t accommodate manners by which states could check and adjust each other legitimately routinely.

On the other hand, we could unchangeable better contest settlement instruments that expansion the contribution of experts from different important fields, as specialized issues identified with PHEIC should be resolved dependent on a viable normalized and settled upon science and the study of disease transmission. Notwithstanding setting clear methods and timetables in settling debates through quiet methods, which would forestall the drawing out or the deferring of building up arbitral courts. The current system doesn’t accommodate all things considered.

The first orders of business will be to launch a more aggressive pandemic response. In fact, shortly after being declared winners of the election, Biden and Harris announced a COVID Advisory Board of leading public health experts who will help them shape the country’s response, including curbing the current surge in cases. On 6 November, the United States saw more than 130,000 new coronavirus infections recorded in a single day — the highest number reported anywhere across the globe since the outbreak began.

All in all, the worldwide network must raise and address these recognized holes of the system in forthcoming World Health Assemblies, to accomplish better structures in battling worldwide pandemics.

“The field of international health before World War II was a pretty fractured space,” says Alexandre White, an associate educator of humanism and the historical backdrop of medication at Johns Hopkins University School of Medicine in Maryland. While a couple of other general wellbeing associations started to jump up far and wide during the 1900s, they handled various needs, and correspondences among them were incoherent. At long last, in 1945, another period of worldwide participation showed up with the establishing of the United Nations toward the finish of World War II. Nations expected that the war’s decision would bring another influx of sickness—much like World War I and the 1918 flu flare-up—and chose to consolidate their endeavors under one global wellbeing office inside the UN. On 7 April 1948, that office would come into power as the World Health Organization, situated in Geneva, Switzerland.

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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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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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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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