The Hindu Editorial Analysis | 14th Feb 19 | PDF Download

Dealing with the thought police

• • It is vitally important that the courts remain free of the discourse on ‘urban Naxals’ and ‘anti-nationals’
  • On February 5, an Additional Sessions Judge in Punjab sentenced three young men to life in prison. Arwinder Singh, Surjit Singh and Ranjit Singh were convicted under a little-known provision of the Indian Penal Code concerning “waging war against the government of India”.
  • In what heinous manner had the three men waged war against the government, which justified a sentence of life imprisonment? A perusal of the 64-page-long judgment reveals the following. They did not commit any physical violence, and nobody was harmed in any way. They were not caught in possession of weapons. They were not overheard planning any specific terrorist attack, nor were they on their way to commit one when they were apprehended. What did happen was that the men were caught with literature supporting the cause of Khalistan, a few posters that did the same, and some Facebook posts (whose content we do not know) on the subject. With this being the sum total of what passed for “evidence” in the case, it is clear that the verdict of the Additional Sessions Judge is unsustainable, and will be reversed. It is important, however, for the higher courts to recognize not only that the judgment is fatally flawed but also that it represents a dangerous moment for the judiciary: this is not the first occasion in recent times when a court has abandoned constitutional values in favour of a crude nationalistic rhetoric that belongs more to the demagogue’s pulpit rather than to the courtroom. And in that context, the judgment of the Additional Sessions Judge marks the beginnings of a trend that, if left unchecked, can swiftly erode our most cherished liberties. Of speech and association The first —and most glaring — aspect of the judgment is its apparent disregard for the Constitution. At the heart of the Constitution’s fundamental rights chapter is Article 19, which guarantees, among other things, the freedom of speech and association. Of course, the state may impose “reasonable restrictions” upon these fundamental freedoms, in the interests of, for example, the security of the state.
  • In a series of careful decisions over five decades, the Supreme Court has articulated the precise circumstances under which a restriction on the freedom of speech or association is “reasonable”.
  • After the famous 2015 judgment in Shreya Singhal, in which Section 66A of the Information Technology Act was struck down, the position of law has been clear: speech can be punished only if it amounts to direct incitement to violence. Everything short of that, including “advocacy” of any kind, is protected by the Constitution.

• Not only is this consistent with the Supreme Court’s jurisprudence, it also harks back to a venerable Indian tradition of civil liberties. In the early 1920s, Mahatma Gandhi famously wrote that the “freedom of association is truly respected when assemblies of people can discuss even revolutionary projects”, and noted that the state’s right to intervene was limited to situations involving actual outbreak of revolution. The logic is simple: in a pluralist democracy, no one set of ideas can set itself up as the universal truth, and enforce its position through coercion.
• Consequently, as the American judge, Louis Brandeis, memorably observed, “If there be time to expose through discussion the falsehood and fallacies… the remedy to be applied is more speech, not enforced silence.” The Indian Supreme Court’s “incitement to violence” standard responds to this basic insight about civil liberties in a democracy.
• Nor is the test diluted just because the issue at stake may involve national security. In three judgments in 2011 — Raneef, Indra Das, and Arup Bhuyan — the Supreme Court made it very clear that the incitement test applied squarely to the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Unlawful Activities (Prevention) Act (UAPA), India’s signature anti-terrorist legislation.
• In particular, the court cautioned that vaguely-worded provisions of these statutes would have to be read narrowly and precisely, and in accordance with the Constitution. So, for example, “membership” of a banned organisation — a punishable offence both under the TADA and the UAPA — was to be understood as being limited to “active membership”, i.e. incitement to violence. In particular, in Raneef, mere possession of revolutionary literature was categorically held to be insufficient to sustain a conviction, something that was blithely ignored by the Additional Sessions Judge in his judgment of February 5.
• In fact, not only did the Additional Sessions Judge ignore Gandhi, Supreme Court precedent on free speech and association and Supreme Court precedent on the interpretation of anti-terror legislation, he also — staggeringly — managed to ignore categorical precedent on the issue of pro-Khalistani speech!
• In Balwant Singh v. State of Punjab (1995), the Supreme Court had set aside the sedition convictions of two men who had raised pro-Khalistan slogans outside a cinema hall in Punjab, in the immediate aftermath of Indira Gandhi’s assassination. Even a situation like that was deemed insufficient to meet the high “incitement” threshold, while here the Additional Sessions Judge managed to hold that Facebook posts amounted to “direct incitement”.
• Judicial objectivity
• There is, however, a further point to consider. In the last few years, a discourse has arisen that seeks to paint a set of oppositional ideas as beyond the pale, and those who hold those ideas as being unworthy of civilised treatment. Two phrases have come to dominate this discourse: “urban Naxal” and “antinational”.
• Neither “urban Naxal” nor “antinational” is a term defined by law. These terms have nothing to do with incitement to violence or creating public disorder. But they are also boundlessly manipulable, and exploited by their users to vilify and demonise political opponents without ever making clear what exactly is the crime (if any) that has been committed. Their very elasticity makes them ideal weapons for shoot-and-scoot attacks, and for coded dog-whistles.
• It is one thing for these terms to be thrown around in a political dogfight. It is quite another when they begin to percolate into law-enforcement and legal discourse, where precision is crucial, because personal liberty is at stake. Indeed, it is vitally important that the courts, above all, remain free of this discourse, because it is the courts that are tasked with protecting the rights of precisely those individuals who are demonized and vilified by the ruling majority of the day.
• While the Additional Sessions Judge does not use either of these specific terms, his entire judgment, however, is of a piece with this governing philosophy, where conjecture, association, and innuendo take the place of rational analysis. In that context, his judgment is reminiscent of the Delhi High Court judgment that granted bail to Kanhaiya Kumar, while embarking upon a bizarre disquisition involving cancer and gangrene, and the police press-conference in the ongoing Bhima Koregaon case which did use the “urban Naxal” term. Case for care
• There is little doubt that the life sentence of Arwinder Singh, Surjit Singh and Ranjit Singh cannot stand the test of law
• However, when an appeals court considers the issue, it should take the opportunity to reiterate a hoary truth: a democracy does not jail people simply for reading books, painting posters, or posting on Facebook. And in adjudicating cases involving the life and personal liberties of citizens, courts must take special care to ensure that the temptation to get carried away and forget what the Constitution commands is held firmly in check. That reminder may come when the three men have already lost some years of their lives to prison — but it could not come soon enough.

Every drop matters

• The regulatory framework must be reformed to ensure access to safe and sufficient blood
• A ready supply of safe blood in sufficient quantities is a vital component of modern health care. In 2015-16, India was 1.1 million units short of its blood requirements.
• Here too, there were considerable regional disparities, with 81 districts in the country not having a blood bank at all. In 2016, a hospital in Chhattisgarh turned away a woman in dire need of blood as it was unavailable. She died on the way to the nearest blood bank which was several hours away. Yet, in April 2017, it was reported that blood banks in India had in the last five years discarded a total of 2.8 million units of expired, unused blood (more than 6 lakh litres). Vigil after collection To prevent transfusion-transmitted infections (TTIs), collected blood needs to be safe as well. Due to practical constraints, tests are only conducted post-collection. Thus blood donor selection relies on donors filling in health questionnaires truthfully. The collected blood is tested for certain TTIs such as HIV and if the blood tests positive, it has to be discarded. However, these tests are not foolproof as there is a window period after a person first becomes infected with a virus during which the infection may not be detectable. This makes it crucial to minimize the risk in the first instance of collection. Collecting healthy blood will also result in less blood being discarded later. Blood that is donated voluntarily and without remuneration is considered to be the safest. Unfortunately, professional donors (who accept remuneration) and replacement donation (which is not voluntary) are both common in India. In the case of professional donors there is a higher chance of there being TTIs in their blood, as these donors may not provide full disclosure.
• In the case of replacement donation, relatives of patients in need of blood are asked by hospitals to arrange for the same expeditiously. This blood is not used for the patient herself, but is intended as a replacement for the blood that is actually used. In this way, hospitals shift the burden of maintaining their blood bank stock to the patient and her family. Here again, there could be a higher chance of TTI’s because replacement donors, being under pressure, may be less truthful about diseases.
• The regulatory framework which governs the blood transfusion infrastructure in India is scattered across different laws, policies, guidelines and authorities. Blood is considered to be a ‘drug’ under the Drugs & Cosmetics Act, 1940.
• Therefore, just like any other manufacturer or storer of drugs, blood banks need to be licensed by the Drug Controller-General of India (DCGI). For this, they need to meet a series of requirements with respect to the collection, storage, processing and distribution of blood, as specified under the Drugs & Cosmetics Rules, 1945. Blood banks are inspected by drug inspectors who are expected to check not only the premises and equipment but also various quality and medical aspects such as processing and testing facilities. Their findings lead to the issuance, suspension or cancellation of a licence.
• In 1996, the Supreme Court directed the government to establish the National Blood Transfusion Council (NBTC) and State Blood Transfusion Councils (SBTCs). The NBTC functions as the apex policyformulating and expert body for blood transfusion services and includes representation from blood banks. However, it lacks statutory backing (unlike the DCGI), and as such, the standards and requirements recommended by it are only in the form of guidelines.
• This gives rise to a peculiar situation — the expert blood transfusion body can only issue non-binding guidelines, whereas the general pharmaceutical regulator has the power to license blood banks. This regulatory dissonance exacerbates the serious issues on the ground and results in poor coordination and monitoring. Towards a solution
• The present scenario under the DCGI is far from desirable, especially given how regulating blood involves distinct considerations when compared to most commercial drugs. It is especially incongruous given the existence of expert bodies such as the NBTC and National AIDS Control Organisation (NACO), which are more naturally suited for this role. The DCGI does not include any experts in the field of blood transfusion, and drug inspectors do not undergo any special training for inspecting blood banks.
• In order to ensure the involvement of technical experts who can complement the DCGI, the rules should be amended to involve the NBTC and SBTCs in the licensing process. Given the wide range of responsibilities the DCGI has to handle, its licensing role with respect to blood banks can even be delegated to the NBTC under the rules. This would go a long way towards ensuring that the regulatory scheme is up to date and accommodates medical and technological advances.
• Despite a 2017 amendment to the rules which enabled transfer of blood between blood banks, the overall system is still not sufficiently integrated.
• A collaborative regulator can, more effectively, take the lead in facilitating coordination, planning and management. This may reduce the regional disparities in blood supply as well as ensure that the quality of blood does not vary between private, corporate, international, hospitalbased, non-governmental organisations and government blood banks.
• The aim of the National Blood Policy formulated by the government back in 2002 was to “ensure easily accessible and adequate supply of safe and quality blood”. To achieve this goal, India should look to reforming its regulatory approach at the earliest.

Well oiled

• It is easy to see why the Saudi Crown Prince has chosen to include India in his Asia tour
• Saudi Crown Prince Mohammed bin Salman visits India next week at a time when both countries are seeking to deepen bilateral cooperation. For MBS, as he is widely known, the visit to India, Pakistan, China, Malaysia and Indonesia is an opportunity to re-assert Saudi Arabia’s role as a major foreign policy player in Asia amid growing criticism over the Yemen war and the brutal assassination of journalist Jamal Khashoggi in Istanbu

1. For the government of Prime Minister Narendra Modi, the visit, with general elections approaching, is an opportunity to cap its pursuit of stronger ties with West Asian nations on a high note. High-level visits between India and Saudi Arabia have become the new normal since King Abdullah came to India in 2006, the first Saudi monarch to do so in five decades. Four years later, Prime Minister Manmohan Singh travelled to Riyadh. Mr. Modi visited Riyadh in 2016; last year, he met MBS in Argentina on the sidelines of the G-20 summit at a time when the Crown Prince had already come under sharp criticism in many Western countries. A number of factors have influenced the turnaround in ties between the two countries, which had been underwhelming during the Cold War. When India’s economy started growing at a faster clip post-liberalization, its dependence on energy-rich nations grew. And Saudi Arabia was a stable, trusted supplier of oil. Post-9/11, the two have expanded the scope of their partnership to economic issues and fighting terrorism.

• MBS is expected to announce Saudi investments in both India and Pakistan. Saudi Arabia, which has traditionally exercised great influence over Pakistan, had recently offered a $6 billion loan to Islamabad to stabilize the economy.
• In India, Saudi Arabia and the UAE have acquired a 50% stake in a refinery complex in Maharashtra. The project remains stalled amid protests against land acquisition, but it shows Saudi Arabia’s interest to make long-term investments in India’s energy sector.
• Another subject that that will come up in bilateral talks is Iran. MBS has made containment of Iran his top foreign policy priority, and has U.S. support in this pursuit. India is certain to come under U.S. pressure to cut oil imports from Iran: it has so far walked the tightrope between Saudi Arabia and Iran. Even as its ties with the Kingdom improved over the past decade, India deepened its engagement with Iran, be it on oil trade or the Chabahar port. This is driven by the conviction that while Saudi Arabia is vital for India’s energy security, Iran is a gateway to Central Asia. New Delhi is sure to continue this balancing act even as it seeks to strengthen the Saudi pillar of India’s West Asia policy.

A clarion call to combat climate change

• The Green New Deal acknowledges the responsibility of the U.S. for its historical emission
• When almost all news about climate change concerns catastrophic events, there are a few shining lights in the U.S. and Europe. One is Alexandria Ocasio-Cortez, 29, the newly elected member of the U.S. House of Representatives. The other is Greta Thunberg, a 16- year-old Swede whose school strike outside the Swedish Parliament, in a clear-minded effort to force politicians to act on climate change, has inspired students in many countries to walk out of their classrooms and make similar demands. If Ms. Thunberg’s voice is inspiring for the way it has roused the youth, Ms. Ocasio-Cortez is daring in her imagination and policies.
• The Green New Deal “is a four-part programme for moving America quickly out of crisis into a secure, sustainable future”. It takes its name from U.S. President Franklin Roosevelt’s famous New Deal, a series of economic and social measures launched in the 1930s to end the Great Depression. The Green New Deal audaciously aspires to make sweeping changes to the environment and economy and meet all of the U.S.’s power demand from clean, renewable and zero emission energy sources by 2030, while at the same time addressing racial and economic justice. Thus, in many ways, it is more than just a climate change plan. Ms. Ocasio-Cortez along with Massachusetts Senator Edward Markey introduced the resolution in the House and Senate on February 7. What the deal says The resolution acknowledges the 1.5° report of the Intergovernmental Panel on Climate Change and the U.S. Fourth National Climate Assessment. It identifies the worldwide effects from warming, the disproportionate responsibility borne by the U.S. as a result of its historical emissions, and calls for the country to step up as a global leader. It speaks about the fall in life expectancy, economic stagnation, erosion of workers’ rights, and rising inequality in the U.S. Climate change that will asymmetrically affect the most vulnerable sections of U.S. society and ought to be considered a direct threat to national security. The resolution goes on to recognize the momentous opportunity available to take action. It states that it is the responsibility of the federal government to create a Green New Deal, which would meet its power demand through renewable sources in 10 years. It calls for a 10-year national mobilization that would build infrastructure, eliminate pollution and greenhouse gas emissions, as much as is technologically feasible, and reduce risks posed by the impacts of climate change.
• These goals entail dramatic changes in manufacturing, electricity generation, education, livelihoods, sustainable farming, food systems, an overhaul of transportation, waste management, health care, and strong pollution-control measures.
• The resolution also calls for international action by the U.S. on climate change. It recognizes that public funds would be needed for these changes and need to be leveraged. It states that the federal government needs to take the full social and environmental costs of climate change into consideration through new laws, policies and programmes. Importantly, the Green New Deal calls for a federal jobs guarantee for all. A welcome surprise
• How far this resolution will go and whether and how it will be diluted in the U.S. Congress is unclear. Many details of the proposal still need to be worked out. It has been called “ridiculous” by some Republicans and has made some Democratic leaders uneasy as well.
• But various progressive elected officials, groups, and some activists have lent their support.
• Almost all Democrats who have announced their candidacy for the 2020 election have backed the resolution.
• A poll conducted by Yale and George Mason Universities showed that there was support for the deal among most Democratic voters and a majority of the Republicans. One does not know if this appetite for the deal will be sustained, but if extreme events related to climate change continue, people are likely to view radical change as essential. If we look at the political situation when Roosevelt passed the New Deal, both Houses of Congress were under the Democrats. On the other hand, the Clean Air Act and the Clean Water Act were passed by President Richard Nixon and were regarded as being radical in their time.
• If any country has the “capability” to increase its commitment in renewables, it is the U.S. This clarion call by Ms. Ocasio-Cortez and Mr. Markey is therefore a welcome surprise. The share of fossil fuels in total electricity generation in the U.S. in 2017 was 63%, the share of renewables was 17%, and the share of nuclear was 20%. The future
• It should be noted that until now no U.S. agency or civil society group has publicly acknowledged the responsibility of the country for its historical emissions.
• The Green New Deal is the sort of resolution the U.S. should have passed after the Kyoto Protocol in 1997. Instead, the U.S. Senate unanimously passed the Byrd-Hagel Resolution, according to which the U.S. ought not to be a signatory to any protocol or agreement regarding the United Nations Climate Convention that would reduce greenhouse gas emissions for Annex-1 Parties, the wealthy countries, unless developing countries were also similarly required to limit their emissions.
• Meanwhile, Ms. Thunberg’s school boycott movement has inspired protests in the Netherlands, Belgium, Germany, Sweden, Australia and elsewhere. If this spreads to many more countries, it can help apply pressure on governments and the fossil fuel industry and create a bottom-up movement led by the youth for major changes in dealing with climate change
• The Green New Deal is an acknowledgement by politicians that economic growth, the environment and social well-being go together.
• While these bold moves by two young women have opened windows to winds of change, how far these can progress and whether they will bring the scale of change needed as rapidly as it is required to deal with the world’s dire challenge remains to be seen.

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