The HINDU Notes – 12th May 2022 - VISION

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Thursday, May 12, 2022

The HINDU Notes – 12th May 2022


📰 Supreme Court puts colonial sedition law on hold

Court suspends pending criminal trials under Section 124A, allows Centre to reconsider the law

•The Supreme Court on Wednesday suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code while allowing the Union of India to reconsider the British-era law.

•"All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of the IPC be kept in abeyance," a three-judge Bench led by Chief Justice of India N.V. Ramana ordered. It was argued in court that about 13,000 people were already in jail under the sedition provision.

•However, adjudication with respect to other Sections of law, if any, would proceed if the court concerned was "of the opinion that no prejudice would be caused to the accused".

•The court also made it clear that it "hopes and expects" the Centre and States to restrain from registering FIRs, continuing investigations or take coercive measures under Section 124A while the "reconsideration" of the colonial provision was on.

•Adding a fail-safe to protect civil liberties against any future misuse of Section 124A while it was under the Union's microscope, the court ordered that the persons accused in fresh cases were free to approach courts, which would consider their cases taking into account the order of the Supreme Court and the "clear" stand of the Union that the provision was abused and needed "re-examination".

•The court, meanwhile, gave the Union of India liberty to issue a directive to States and authorities to prevent the continued misuse of the sedition law.

•The Bench, also comprising Justices Surya Kant and Hima Kohli, said the court's directions would hold until further orders.

Powerful message

•The apex court order would act as a powerful message against the rampant misuse of the sedition law by governments to silence dissent and violate personal liberty. Undertrials booked under Section 124A can now use the order to seek bail.

•The court listed the sedition case for the third week of July.

•The order came after the Centre, represented by Solicitor General Tushar Mehta, acknowledged that the law was not in tune with the current times. The government had urged the court to pause its hearing of a batch of petitions challenging Section 124A until the government completed its "reconsideration process" of the sedition provision."

•It is clear that the Union of India agrees with the prima facie opinion expressed by this court that the rigours of Section 124A of the IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the provision of law," the Supreme Court observed in its 10-page order.

•The Bench, however, did not give a deadline for the reconsideration exercise, aware that it may involve legislative process.

A balancing act

•The court's interim order is expressly a balancing act. "This court is cognisant of security interests and integrity of the state on one hand, and the civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise," it observed.

•The court recounted how the petitioners had argued that the provision dated back to 1898 and even pre-dated the Constitution.

•It also referred to Attorney General of India K.K. Venugopal's submissions about "glaring instances of abuse of Section 124A" like the recent booking of persons under sedition for chanting the Hanuman Chalisa.

•"Therefore, we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the provision by the governments," the court reasoned.

•In the morning, prior to the delivery of the order, Mr. Mehta had submitted that Section 124A represented a cognisable offence and the authorities could not be prevented from registering cases under the provision.

•He had however proposed that a senior officer at the level of the Superintendent of Police (SP) could scrutinise the facts of individual cases prior to registration of FIRs in a bid to prevent abuse.

•Mr. Mehta had said that there could not be a blanket ban or freeze in the prosecution of pending cases under Section 124A.

•"We do not know the gravity of offences involved in these cases... Some may also involve charges of terrorism and money-laundering," Mr. Mehta argued.

•He said the accused in these pending cases could individually approach the courts for relief. "There is no reason to distrust the judicial process," Mr. Mehta said.

•He said bail applications under Section 124A could also be heard expeditiously. The law officer urged the court to pronounce an interim order on the lines proposed by the government until the re-consideration of the sedition law was completed.

Oppose Centre’s proposal

•Senior advocates Kapil Sibal, Gopal Sankaranarayanan along with advocates P.B. Suresh, Kaleeswaram Raj and S. Prasanna, for the petitioners, had objected to the Centre's proposal.

•"Section 124A is per se unconstitutional... We have not come to court for a stay of the provision. We want the court to strike it down," Mr. Sibal contended.

•"The Centre says an SP can do pre-FIR registration scrutiny... You have anyone else in mind to do it?" Justice Kant asked the senior lawyer.

•"We don't want to go to anyone... The Section is itself unconstitutional," Mr. Sibal replied.

•"You want us to declare Section 124A unconstitutional today itself... Don't answer like that," Justice Kant shot back.

•"Many are in jail," Mr. Sibal said.

•Justice Kohli intervened to explain that the court was "only exploring what the situation should be in the interregnum". After this, the Bench retired to their chambers to discuss and prepare the order.

•On Tuesday, the court had indicated a willingness to pause its hearings until the government re-examined the law of sedition. However, the court had wanted a clear answer by Wednesday on how it intended to protect the interests of people already arrested and facing prosecution under Section 124A. The court had further sought the government’s response on whether the use of the British-era law could be suspended in view of the reconsideration process.

📰 Shallow and deep ecologism

All forms of environmentalism will not lead to effective climate change

•Heat waves are known to have been a reality for hundreds of years. But the long-term effects of climate change have exacerbated them, making the waves more extreme, frequent and prolonged. As India continues to grapple with the unrelenting waves, it becomes pertinent to unpack two strands of environmental philosophy that reinvent the relationship between nature and humans — shallow and deep ecologism.

Two styles of ecologism

•The concepts emerged in the 1970s, when Norwegian philosopher Arne Næss sought to look beyond the popular pollution and conservation movements of his milieu to address environmental degradation. In his study of ecological concerns, Næss is more preoccupied with the role of the individual in nature. He believes that owing to increased anthropocentrism, humans have cut themselves off from nature, viewing nature and themselves as competing entities and establishing a master-slave dynamic.

•By placing humans at the heart of the environmental crisis, Næss outlines the difference between the two styles of ecologism. He terms the powerful and fashionable fight against pollution and resource depletion as shallow ecologism or environmentalism. Exponents of this philosophy believe in continuing our present lifestyle, but with specific tweaks aimed at minimising the damage to the environment. Also referred to as weak ecologism, it may include the use of vehicles that cause less pollution or air conditioners that do not release chlorofluorocarbons (CFCs). This branch of ecologism primarily serves to maintain the lifestyle of those dwelling in developed countries.

•On the other hand, deep ecologism believes that humans should radically change their relationship with nature. Its proponents reject shallow ecologism for prioritising humans above other forms of life, and subsequently preserving the environmentally destructive way of life in modern societies. Deep ecologism maintains that by sustaining this lifestyle, shallow ecologism further widens the inequalities between countries. For instance, despite constituting only five per cent of the world’s population, the U.S. accounts for 17% of the world’s energy consumption and is the second largest consumer of electricity after China. Similarly, while low and middle-income countries have recorded lower cumulative and per capita carbon dioxide emissions over the past two centuries, it is the wealthier countries which are most responsible for a majority of carbon emissions.

Objectives of deep ecologism

•Deep ecologism aspires to sustain nature by making large-scale changes to our lifestyle. These may include limiting the commercial farming of meat to preserve forest areas and reduce the artificial fattening of animals, or the reshaping of transport systems which involve the use of internal combustion engines.

•However, besides advocating these lifestyle changes, deep ecologism shifts the attention from pollution and conservation narratives to robust policy formulation and implementation. According to Næss, policy-making must be aided by the reorientation of technical skills and inventions in new directions that are ecologically responsible. In fact, Næss recommends that ecologists reject work that is supervised by authorities with limited ecological perspectives. As irreplaceable informants, ecologists should not submit to power which does not recognise critical ecological priorities.

•Additionally, to recognise the complex richness of different lifeforms, deep ecologism calls for a re-evaluation of the ‘survival of the fittest’ doctrine. Survival of the fittest should be understood through the human ability to cooperate and coexist with nature, as opposed to exploiting or dominating it. Deep ecologism thus prioritises a ‘live and let live’ attitude over an ‘either you or me’ approach.

The political potential of ecologism

•Both strands of ecologism draw from different frameworks, including socialism, anarchism, feminism, conservatism and sometimes even fascism. Deep ecologism in particular borrows from socialism. In his writings on deep ecologism, Næss argues that a narrow focus on pollution and conservation movements is counterproductive. He believes that when projects are only implemented to solve pollution, it generates evils of a different kind. For instance, the installation of pollution control devices may increase the cost of living, leading to an increase in class difference. An ethically responsible ecologism is one which operates in the interest of all economic classes.

•The environment may also become more vulnerable when decisions are strongly influenced by majority rule, without taking local interests into consideration. According to Næss, a solution to this can be found in decentralising the decision-making process and strengthening local autonomy. Næss claims that a chain consisting of a local board, a municipal council, a state-wide institution, a national government institution, a coalition of nations, and a global institution can be reduced to one made up of a local board, a nation-wide institution, and a global institution. A lengthy decision-making chain is unfavourable as it is prone to excluding local interests.

•In all, Næss cautions humans against adopting a ‘vague, global’ approach to the environmental crisis.

•A holistic perspective to the crisis is one which acknowledges regional differences and the disparities between under and over-developed nations.

•Næss stresses that the political potential of the movement be realised, and that those in positions of power be held accountable. The responsibility of solving the climate crisis falls on policy-makers as much as it does on scientists and ecologists.

📰 From Bharat to India

Given the diversity and complexity of India, the only constitutionally valid common denominator is citizenship

•‘From Bharat to India’ is an eye-catching title, obverse as it is to prevalent terminology. This is the description that eminent sociologist and former president of the International Sociological Association, T.K. Oommen, has used for part two of his autobiographical essay; the first section, ‘Workography’, was published some years ago. This neat, albeit unusual, bifurcation of life sheds light on his thought process.

A secure society

•Over the years, Prof. Oommen has written extensively on the concept of social security. He says the principal challenges to the evolution of a nation lie in minimising disparity, eradicating discrimination, and avoiding alienation. He has listed nine categories of socially and/or politically and/or excluded groups in our society: “Dalits, Adivasis, OBCs, cultural minorities — both religious and linguistic, women, refugees-foreigners-outsiders, people [of] Northeast India, the poor and the disabled”. He has suggested that “the three sources of exclusion in India — stratification, heterogeneity and hierarchy — create intersectionality.” This insecurity manifests itself in genocide, culturocide and ecocide and in its absence, a society may be conceptualised as secure.

•The concluding sections of the monograph are on the idea of India, on social formation and the moulding of individual identities. Prof. Oommen dwells on the diversity of our social make-up and makes the telling point that his identity as a Dravidian can be traced to 5,000 years ago, his identity as a Syrian Christian to two millennia and as a Malayalam speaker to six centuries. Each of these coexists with his being an Indian for seven decades and, by the same token, qualifies the latter. The Indian polity, he says, “has the most elaborate set of identities based on class, religion, gender, caste, region, language and their intersectionalities as well as consequent permutations and combinations. To ignore this complex social set up and speak in terms of ‘multiple identities’ is not only simplistic but also misleading. And, given the long history of India and its shifting frontiers, it is not easy even to identify the identity markers of Indian citizens and demarcate the numerous identity groups in India.” A fruitful route forward would be to look at “the major steps in the social formation of India”.

•These remarks suggest a re-look at the contours of the current, politically fashionable debate about unity in diversity and social inclusion. This does not seem to be happening; instead, as a reputable journal has put it, ‘bulldozing the idea of India’ seems to have become the preferred option of those associated with the ruling circles. This is neither desirable nor healthy for the polity and while there is endless talk of the Constitution, the principles of liberty, justice, equality and fraternity that are intended to give unity to the nation are being sidestepped.

•Recalling these principles compels us to revert to B.R. Ambedkar’s last speech in the Constituent Assembly on November 25, 1949 and to his three warnings to ensure continuance of democracy “not merely in form but also in fact.” These were constitutional procedures, avoidance of hero worship, and social democracy instead of mere political democracy. The latter, Ambedkar emphasised, necessitates equality and fraternity. Why then is the principle of fraternity absent from the pronouncements of leaders? Its absence suggests a disconcerting pattern and leads to the endorsement of differentiations between citizen and citizen. How would such polarisation promote national unity?

The common denominator

•Given the diversity and complexity of India, the only constitutionally valid common denominator is citizenship. This is the point at which fraternity can and should be practiced among equals. Prof. Oommen, however, is not content with this and seeks “an isomorphous model for India’s socio-cultural reality”. He opines that it is “only through the conflation of state and nation” can our Republic be considered a nation. Cultural monoism and secularism are insufficient, he says; instead, “the idea of conceptualizing India as a multicultural polity is more amenable than a secular India.” The sheet anchor of this has to be citizenship.

•There is a teaser towards the end in relation to Article 351 of the Constitution on the national language. Hindi is to be enriched by ‘Hindustani’ along with other languages in the Eighth Schedule; yet the latter does not figure in the list of the Eighth Schedule. Prof. Oommen instead suggests that “India shall be a multicultural nation and not a nation-state having many identities and that eventually the preferable solution would lie in a confederation – USSA (United States of South Asia).” Could this be one way of giving shape to Bharat?

📰 Still a long way for termination as an unconditional right

Despite amendments, the Medical Termination of Pregnancy Act does not foreground the woman’s right to decide

•The issue of abortion is in the news again, internationally. This, therefore, appears to be a good time to pen down a summary and analysis of the legal status of abortions in India.

•Under the general criminal law of the country, i.e. the Indian Penal Code, voluntarily causing a woman with child to miscarry is an offence attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman. A pregnant woman causing herself to miscarry is also an offender under this provision apart from the person causing the miscarriage, which in most cases would be a medical practitioner.

Amendments and expansion

•In 1971, after a lot of deliberation, the Medical Termination of Pregnancy (MTP) Act was enacted. This law is an exception to the IPC provisions above and sets out the rules — of when, who, where, why and by whom — for accessing an MTP. This law has been amended twice since, the most recent set of amendments being in the year 2021 which has, to some extent, expanded the scope of the law. However, the law does not recognise and/or acknowledge the right of a pregnant person to decide on the discontinuation of a pregnancy.

•The law provides for a set of reasons based on which an MTP can be accessed: the continuation of the pregnancy would involve a risk to the life of the pregnant woman or result in grave injury to her physical or mental health. The law explains that if the pregnancy is as a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent a pregnancy, the anguish caused by the continuation of such a pregnancy would be considered to be a grave injury to the mental health of the pregnant woman. The other reason for seeking an MTP is the substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.

•The existence of one of these circumstances (at least), along with the medical opinion of the medical practitioner registered under the MTP Act is required. A pregnant person cannot ask for a termination of pregnancy without fitting in one of the reasons set out in the law. The other set of limitations that the law provides is the gestational age of the pregnancy. The pregnancy can be terminated for any of the above reasons, on the opinion of a single registered medical practitioner up to 20 weeks of the gestational age. From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required. This extended gestational limit is applicable to certain categories of women which the rules define as either a survivor of sexual assault or rape or incest, minors, change of marital status during the ongoing pregnancy, i.e. either widowhood or divorce, women with major physical disabilities, mentally-ill women including mental retardation, the ground of foetal malformation incompatible with life or if the child is born it would be seriously handicapped, and women with pregnancy in humanitarian settings or disaster or emergency situations as declared by the government.

•Any decision for termination of pregnancy beyond 24 weeks gestational age, only on the ground of foetal abnormalities can be taken by a Medical Board as set up in each State, as per the law. No termination of pregnancy can be done in the absence of the consent of the pregnant person, irrespective of age and/or mental health.

•The law, as an exception to all that is stated above, also provides that where it is immediately necessary to save the life of the pregnant woman, the pregnancy can be terminated at any time by a single registered medical practitioner. This, as stated, is the exception and is understood to be resorted to only when the likelihood of the pregnant woman dying is immediate.

Seeking judicial permission

•While India legalised access to abortion in certain circumstances much before most of the world did the same, unfortunately, even in 2020 we decided to remain in the logic of 1971. This, despite the fact that by the time the amendments to the MTP Act were tabled before the Lok Sabha in 2020, just before the lockdown following the novel coronavirus pandemic, courts across the country (over the preceding four years) had seen close to 500 cases of pregnant women seeking permission to terminate their pregnancy (broadly on reasons of either the pregnancy being as a result of sexual assault or there being foetal anomalies incompatible with life). In a number of these cases, the courts had articulated the right of a pregnant woman to decide on the continuation of her pregnancy as a part of her right to health and right to life, and therefore non-negotiable. Similarly, a number of courts had also viewed the cases at hand in the realm of the facts of the case and decided not to set the interpretation of the law straight.

•This was also after the landmark right to privacy judgment of the Supreme Court of India in which it was held that the decision making by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life. The standards set out in this judgment were also not incorporated in the amendments being drafted. The new law is not in sync with other central laws such as the laws on persons with disabilities, on mental health and on transgender persons, to name a few. The amendments also did not make any attempts to iron out the conflations between the MTP Act and the Protection of Children from Sexual Offences (POCSO) Act or the Drugs and Cosmetics Act, to name a few.

•While access to abortion has been available under the legal regime in the country, there is a long road ahead before it is recognised as a right of a person having the capacity to become pregnant to decide, unconditionally, whether a pregnancy is to be continued or not.

•Anubha Rastogi is a lawyer practising in the courts of Mumbai for the past 19 years and is an active voice on sexual reproductive health and justice issues