The HINDU Notes – 21st June 2022 - VISION

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Tuesday, June 21, 2022

The HINDU Notes – 21st June 2022


📰 At the centre of job creation

The government should re-establish its role as the principal employment generator

•With his announcement that 10 lakh government jobs will be provided over the next 18 months on a “mission mode”, Prime Minister Narendra Modi sent four messages. One, the creation of employment is indeed a problem and can no longer be hidden from the public discourse. Two, the private sector, especially modern sectors such as the service and manufacturing sectors, which are dominated by multinational companies, have not created many jobs. Even if the Information Technology sector or the modern gig economy have created jobs, these are either very high-skilled jobs or low-skilled ones. Three, the government in the Nehruvian scheme of development occupied an important place in the labour market. The National Democratic Alliance (NDA) government, whose ideology is different and which often attacks the Nehruvian model, is now ironically forced to step in as persistently rising inflation, unemployment and underemployment threaten to politically affect it. And four, the NDA government has blown the 2024 general election bugle.

Employment trends

•A populist announcement made by any government needs to be critically studied. Let’s look at some employment data. First, the last year for which we have information on employment in the organised sector from the Directorate General of Employment and Training is 2012. The statistics were provided under the employment market information programme. The NDA government is at present relying on the Employees’ Provident Fund Organisation/National Pension System/Employees’ State Insurance Scheme registrations and exits as indicators of the formal labour market. This could be misleading as companies may be increasing registrations to cross the threshold to become eligible to fall under any of these. Hence, this might be more a case of formalisation rather than employment generation. Second, media reports show that more than 85% of those aspiring for those 10 lakh jobs could be consumed by existing vacancies in Central government departments (8,72,243). In that sense, the pronouncement possibly does not indicate 10 lakh new jobs. Third, 241 central public sector enterprises (CPSEs) have been shedding jobs in recent years — jobs declined from 10.84 lakh in 2017-18 to 10.71 lakh in 2018-19 and to 9.22 lakh in 2019-20. Mr. Modi did not speak of employment creation by the CPSEs though this downward trend is a cause for concern.

•The 10 lakh jobs creation also needs to be seen in the context of the labour market. Even though the labour force and workforce participation rates have increased marginally, there is a decline in the quality of jobs, viz. there is a rise in the unpaid segment of the self-employed and a rise in the share of the agricultural sector in total employment over the last three Periodic Labour Force Surveys (43% to 47%). This is a historical retrogression. This huge mass of workers contributes, thanks to low productivity, to about one-sixth of our national income, which does not augur well for a healthy economy. On the other hand, the manufacturing sector’s share in national income has declined in 2020-21 (10.9%) compared to that in 2018-19 (12.1%).

•Again, even though the aggregate usual status unemployment rate has slightly declined by a few percentage points (4.8% in 2019-20 to 4.6% in 2020-21), the current daily status unemployment figure (internationally used statistic) is at 7.5% for all persons in 2020-21. The educated unemployment rate (secondary school and above) in general and youth unemployment (15-29 years) in particular in the urban areas have very marginally fallen from 2019-20 to 2020-21, but they still high enough to cause concern (in double digits). Employment shares in the informal enterprises have increased — for men (71% to 75%), women (55% to 57%) and all persons (68% to 71%) from 2017-18 to 2020-21. Even though the share of regular salaried workers who did not have a formal employment contract, paid leave and eligibility for any form social security have declined for both genders, the level is still high. The government could score a point or two by showing that there is a declining tendency in several labour market variables. But an honest government would concede that the levels of several variables remained discomfortingly high even after three decades of economic reforms.

Role of private sector

•Even as the Nehruvian model of development is attacked in the current dominant political discourse, we cannot avoid placing the government at the centre of employment creation beyond a certain point. The private sector creates jobs in response to market forces and while taking into consideration radically altering technological developments. We cannot rely on the projections about employment generation by the gig economy. They are estimates computed by a trade body or by consulting agencies which have vested interests. As they are political economy agents influencing government policies, their predictions need to be read with many pinches of salt. The job recovery stories, which are published from to time in the pink press, based on employment service providers such as Monster Employment Index, need to be seen in the context of a highly job-impoverished economy such as ours. Projects in the modern private sector consume a lot of capital to generate very few jobs. For instance, recently, there was a report that the Adani Group has invested ₹70,000 crore (or ₹700 million) in Uttar Pradesh to create merely 30,000 jobs. Foreign Direct Investment, which at any rate is highly capital-intensive, goes mostly into the non-manufacturing sectors.

Quantity and quality of jobs

•Employment is not merely about numbers and growth figures. We need to concentrate on enabling the creation of decent work and a sustainable labour market to which India is committed as a member of the United Nations and the International Labour Organization. Wittingly or otherwise, the government’s role in employment generation has entered into popular discourse and discussions on policy formation. While even one job is a miracle, we need millions. The government should play a significant role soon. A lean and mean government, which is often prescribed by the neoliberal project, often results in governance deficit. The government should re-establish its role as the principal employment generator through jobs in its ministries and CPSEs and through assured employment generation programmes like MGNREGA.

📰 Rare dragonfly spotted in Kerala for first time

Dragonfly enthusiasts have recorded the presence of a rare dragonfly that was hitherto unseen in Kerala.

•Afsar Nayakkan and Vibhu Vipanchika spotted the Spiny Horntail, Burmagomphus chaukulensis Joshi, Ogale & Sawant, 2022 (or B. chaukulensis), during a recent expedition to the Kottiyoor forests of Kannur. The species that is known to be endemic to the Western Ghats was discovered in Maharashtra earlier this year.

•The discovery that was recorded from Kottiyoor was confirmed by Vinayan P. Nair, an odonate expert who represents the TNHS Odonata Research Group (TORG) of the Travancore Nature History Society (TNHS).

•Researchers Shantanu Joshi, Dattaprasad Sawant and Hemant Ogale had spotted the species from Chaukul in Sindhudurg district of Maharashtra. Prior to their finding, the dragonfly genus Burmagomphus was represented by three species – B. cauvericus, B. pyramidalis and B. laidlawi. While B. laidlawi is found throughout the Western Ghats, B. cauvericus is more restricted in its distribution. B. pyramidalis is found in the Western Ghats as well as in Peninsular India. All other species of the genus are found in the Western and Eastern Himalayas.

•The new species can be separated from its congeners by the markings on the lateral thorax and peculiar shape of anal appendages, said Mr. Nair.

•According to a paper published by TORG last year, 181 odonata species have been recorded in Kerala. The addition of B. chaukulensis will take the count to 182. TORG research associate Kalesh Sadasivan said the discovery demanded more detailed studies of odonates in the areas of Kerala that forms part of the Western Ghats.

📰 The choice is narrowing the circle or widening it

The nation must remain diverse and inclusive, continuing to build itself on the principles in the Preamble

•An editorial comment recently opined ‘India is witnessing the progressive normalisation of minority baiting’. Some developments in a related context lend credence to it.

•Recent happenings within the country and their reactions in lands far and near tend to pose the problem. The sequencing is relevant and must not be interchanged. The reactions beyond our shores were not autonomous and were induced by what was said to audiences at home, by whom it was said, and why it became critical and induced reactions, immediate and over a passage of time.

Neighbourhood impact

•One aspect of the matter, understandably played up in the domestic media, is the reaction in the Gulf Cooperation Council and Persian Gulf countries with whom India has extensive and diverse political and commercial relations. These also provide gainful employment to many million Indian nationals whose remittances are an important source of foreign exchange remittances, in turn sustaining millions of households. Each of these has been quantified. In strategic terms, the region is India’s extended neighbourhood; so is the case with Malaysia and Indonesia and Brunei in Southeast Asia.

•It is evident that the malaise (while being domestic in its origin) has global dimensions. Its external manifestations are aggravated by modern means of communication. By the same logic, the correctives have to emanate in the context of domestic perceptions and practices.

An emerging disquiet

•Muslims are our largest religious minority, constituting 14.3% of the total population and numbering over 200 million. If considered along with the populations in Indonesia, Pakistan and Bangladesh, they constitute the largest Muslim group anywhere in the world. They are spread all over the country and are well integrated, but of late, signs of disquiet have been evident in all segments of the community.

•The reason for this are the remarks uttered in media debates by two spokespersons of the ruling party reflecting on the personality of the Prophet. After a lapse of over a week of deafening silence, one of these persons was suspended and the membership of the second dispensed with. Both actions are viewed as inadequate by the community. No reaction has emanated from senior levels of government. The silence of institutional bodies such as the National Human Rights Commission of India and of the National Commission for Minorities is intriguing; so is the apparent reticence of the judiciary.

•On the contrary, the use of strong-arm tactics and bulldozers to counter public demonstrations seeking firmer action against alleged culprits is suggestive of bias and has been aptly summed up in a candid editorial comment: ‘there is little doubt that the demolitions amount to an abuse of power, a challenge to the rule of law and are inherently illegal due to the absence of due process or proportionality’. Some observers have even opined that the bulldozer is an instrument to silence the minorities since its use in similar cases involving non-minority public is wanting.

•What then could be the intent? Would it be to discipline, and thereby give rise to a feeling of denial with all its consequences?

Furtherance of hate

•The operative constitutional principle in social behaviour should be the promotion of equality and fraternity. In actual practice it is the contrary; this results in furtherance of hate by denigration. In an earlier period, this used to focus principally on regional types and linguistic expressions. This was found to be troublesome since retaliation in kind was often quick and in equal measure. The alternative was to denigrate faiths or socio-religious practices in competitive one-upmanship. An easy target in this was the numerous but socially and economically weaker segments that could even be mocked in terms of assumed backwardness. And, since most of our fellow citizens have reverence for traditional beliefs, ‘experts’ were soon discovered for these target areas. The public’s addiction to popular television and its concocted levels of debate (premised on a preference for the brash and the articulate) invariably produces the desired results sought in some sections.

Indic versus non-Indic

•A categorising segment of recent origin is the differentiation between Indic and non-Indic. This, put together with the existential diversity of faiths, seeks to divide fellow citizens between those who pursue Indic faiths assumed to be of Indian origin and those who subscribe to Christianity and Islam allegedly of external import. The argument is premised on a certain reading of Indian history and the sociological issue is sought to be premised on what constitutes Indianness, ignoring that our society is ‘a mosaic in which primordial cleavages both intersect and intermix with contemporary socio-economic segments’.

•This ideological effort in a quest of ‘purifying exclusiveness’ is premised on our reading of history. A relevant question is whose history — of India defined in the period of British rule, or of India traditionally defined as Bharat? The latter would include many segments of southern Asia covered today by the South Asian Association for Regional Cooperation (SAARC) countries. Furthermore, and in terms of what is sought to be presented as our history would also include parts of Afghanistan and even of Iran since the latter was depicted by M.S. Golwalkar as ‘nothing but the base of Aryabhumi’. One consequence of this would be to categorise Ghazni, Khilji, Lodi, etc. not as foreign invaders but as domestic brigands who committed acts of loot and plunder and even succeeded in establishing kingdoms. Nor can the landmass of Bharat be described in terms of faith alone since there was a period of several centuries when Buddhism was the dominant religion. Furthermore, in the centuries when the rulers were Muslims, no effort seems to have been made to carry out mass conversions; on the contrary, the influence of Sufi saints was more pervasive.

•The Indian reality of migrating groups seeking greener pastures since times immemorial qualifies our nomenclature of a ‘civilisational state’ and is better depicted in Raghupati Rai Firaq’s couplet: Sar zamin-e-hind par aqwam-e-alam ke Firaq/Qafile baste gae hindostan banta gaya (Caravans from nations of the world kept coming and contributed to the formation of Hindostan).

•Linguistically, India has also been called ‘a land of linguistic minorities’. The Linguistic Survey of India and the research of Ganesh Devy bring forth the regional diversity of living languages. This lends credence to outbursts against linguistic homogeneity that is attempted periodically in the guise of national unity.

•In multiple senses, our national choice thus lies in an ever-widening circle and in resisting all attempts, however well meaning, in abridging it. India is and must remain diverse and inclusive, and continue to build itself on the principles inscribed in the Preamble.

📰 A case of the court straying into the legislative sphere

The Allahabad High Court’s directions in the context of marital discord, though noble in intent seem to be flawed

•Recently, the Allahabad High Court, while allowing two criminal revisions pertaining to a dowry case, took cognisance of the misuse of Section 498A of the Indian Penal Code (IPC), proposed certain safeguards and directed the State authorities of Uttar Pradesh to take the necessary steps for their implementation in a given time period. The High Court expressed its concern over the growing tendency of dowry victims to rope in the husband and all his family members using general and sweeping allegations.

•The directions, inter alia, include constitution of a family welfare committee in each district under the District Legal Services Authority (DLSA), handing over the first information report to such a committee immediately after its registration, and no arrest to be made by the police during this “cooling period’ of two months. As far as the High Court judgment reads, there were no allegations against the police that had dropped charges against two persons for lack of evidence and charge-sheeted only the husband and his parents based on available evidence.

•Strangely enough, the High Court specifically mentioned in its judgment of taking guidance from the judgment of the Supreme Court of India in Social Action Forum for Manav Adhikar vs Union of India (2018), a case in which the Supreme Court overturned the judgment of its two-judge Bench and held constitution of similar committees and an embargo on arrest by the police for one month till the submission of report by the family welfare committee, impermissible under the scheme of the Code of Criminal Procedure (CrPC) (Rajesh Sharma vs The State of U.P., 2017). Both Court judgments also dealt with the growing misuse of dowry provisions.

Committee’s role

•Except for the minor difference in the composition of the family welfare committees (such as inclusion of a young mediator or an advocate or a senior law student) as directed by the High Court, the primary role of such committees remains the same, i.e., settling the matrimonial dispute between the two parties. Whereas, in the Rajesh Sharma (supra) case, directions did not apply to the offences involving tangible physical injuries, the High Court’s directions shall apply to the cases involving Section 498A IPC, along with no injury – Section 307 (attempt to murder) and other sections in the IPC in which the imprisonment is less than 10 years. In other words, if a woman’s bone is fractured or permanent privation is caused to any eye or ear or a joint by her husband during the course of a matrimonial fight, the police shall not effect arrest, as the maximum imprisonment prescribed in such cases of grievous hurt is seven years. The police shall only do peripheral investigations such as collecting the injury report and recording the statements of witnesses, whose worth is unsure in further proceedings. The judgment is also silent about the role of the police if a repeat offence is committed during such a ‘cooling-period” of two months, which was only one month in the overruled Rajesh Sharma (supra) case.

•The moot question (without going into the nuances) is whether the High Court was well within its jurisdiction to issue such directions when the scheme of investigation under the CrPC was clearly laid down and there was no ambiguity about or gaps in the law on arrest, inviting such a fresh interpretation. In Vishaka vs State of Rajasthan (1997), the Supreme Court issued directions to enforce fundamental rights in the absence of law in certain cases of sexual harassment at the workplace. However, in the case of Social Action Forum for Manav Adhikar (supra), the Court held that a third agency (i.e., the family welfare committee) had nothing to do with the CrPC, and more so in stalling arrest till a report is submitted by the committee. The directions to settle a case after it is registered is not a correct expression of law, the top court held.

•It cannot be refuted that the directions issued by the High Court were inspired with noble intentions to curb the tendency of reporting cases with exaggerations and sweeping allegations in the heat of matrimonial discord. But these directions potentially fall in the sphere of legislature. The constitutionality of dowry provisions has already been established. Also, the misuse of Section 498A IPC by itself cannot be a ground to dilute it and issue directions which do not flow from any provision of the Code. Moreover, these directions might curtail the rights of a genuine victim of dowry harassment.

Possible solutions

•However, in order to check false cases of dowry and avoidable incarcerations, two solutions seem plausible. First, the police must strictly enforce the Supreme Court’s directions issued in Arnesh Kumar vs State of Bihar (2014) and ensure that there is sufficient reason and credible material against the accused person to necessitate arrest. The investigating officers must be imparted rigorous training with regard to the principles stated by the Court relating to arrest. At the same time, wrong-doers need to be punished departmentally.

•Second, the legislature may deliberate upon and make Section 498A IPC bailable. Similarly, though the High Court (using its inherent powers under Section 482 CrPC) can quash a criminal proceeding which is not compoundable (after a settlement is reached between the opposing parties), the legislature can amend and make the offence under Section 498A IPC compoundable so that a compromise could be arrived at with or without the permission of the competent court. This will not only save cost to the parties in dispute but also the High Court’s valuable time. Similarly, once the Mediation Bill, 2021 is enacted, the institutional mediation mechanism may also help in settling the matrimonial dispute through the civil route.

•Till the time any such amendment is made or law is enacted, the law of the land needs to be enforced strictly by both the police and the courts, without any dilution. Any such directions which do not emanate from the provisions of law, are likely to be struck down by the Supreme Court again.

📰 Resurrecting a dead law

Even if there is a backdoor attempt at legislation, bringing Section 66A back on the statute book will not be easy

•Section 66A of the Information Technology Act, 2000, which the Supreme Court had declared unconstitutional in 2015 in Shreya Singhal v. Union of India for having a “chilling effect on free speech”, is back in the news. As part of the ongoing negotiations at the United Nations for a proposed international treaty on combating cybercrime, India made a formal submission for criminalising “offensive messages”. The language in the submission is similar to what was used in Section 66A. Many contend that this amounts to a ‘backdoor’ attempt at legislation — that is, if India’s submission becomes part of the proposed treaty, it would result in Section 66A springing back to life and being used by the state to curb free speech once again. However, it is not so simple.

Is international treaty binding?

•First, international treaty negotiations are complex. It is premature to believe that India’s suggestion of criminalising “offensive messages” will be readily accepted. The U.K. and many countries in the European Union have reportedly already contested India’s submission because they see this as an undue impediment to the freedom of speech.

•But suppose we assume that India’s proposal is accepted, would that mean that the provision will have a direct effect on the Indian legal system? Arguably, India is a dualist state. Therefore, international law does not become a part of the domestic legal system unless it is specifically transformed into domestic law by Parliament, which will be required to enact legislation to implement the international law. This is different from the theory of monism, wherein international law is automatically incorporated into the domestic legal system of the country even without Parliament enacting an enabling legislation. However, over the years, the Supreme Court of India has moved away from this traditional dualist approach towards monism. In cases such as Vishakha v. State of Rajasthan (1997), National Legal Services Authority v. Union of India (2014), and K.S. Puttaswamy v. Union of India (2018), the court followed an approach of judicial incorporation by reading international law into domestic law in the absence of any specific prohibition in municipal law. In other words, the emerging principle is that courts will respect international law unless it can be shown that it is inconsistent with municipal law.

•If we do get an international treaty combating cybercrime with a provision similar to Section 66A, the Indian courts will not read this provision as part of domestic law because of the ratio in the Shreya Singhal case. It will be a classic case of an international law being in conflict with domestic law. Thus, the Indian courts will give primacy to the domestic law, not the international treaty provision criminalising “offensive speech”.

Transforming international treaty

•However, things may become convoluted if Parliament enacts legislation or amends existing legislation to implement the international treaty that criminalises “offensive messages”. The government may get a law passed in Parliament using Article 253 of the Constitution, which states that Parliament has the “power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention”, and place a provision similar to Section 66A back on the statute book. Legally, such a law can be justified as a necessary action to comply with India’s international law obligations. It will then give the executive the power to book people for alleged “offensive messages” as was the practice earlier.

•But what if the constitutionality of the re-introduced version of Section 66A is challenged? The courts will then examine the constitutionality of the reintroduced version of Section 66A in light of the fact that it was enacted to comply with India’s international law obligations. But the constitutional court will still strike down the re-introduced version of Section 66A because the grounds on which this law was pronounced unconstitutional will still be valid in light of the fundamental right to free speech. In other words, just because Parliament enacts a law to give effect to an international treaty obligation, that does not mean that the law so enacted will not need to meet the test of constitutionality. Therefore, the possibility of Section 66A coming back on the statute book is bleak unless a bigger Supreme Court bench overrules Shreya Singhal.

•But this issue is not just about legal technicalities. The alarming point is that the Indian government proposed the inclusion of a provision in an international treaty which was struck down by its own apex court for breaching fundamental rights. This mindset does not augur well for constitutionally protected fundamental freedoms in India.