The Hindu Editorial Analysis | 19th Dec’19 | PDF Download

• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• (commonly known as the United Nations Convention against Torture (UNCAT)) is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world.
• The Convention requires states to take effective measures to prevent torture in any territory under their jurisdiction, and forbids states to transport people to any country where there is reason to believe they will be tortured.
• The text of the Convention was adopted by the United Nations General Assembly on 10 December 1984 and, following ratification by the 20th state party, it came into force on 26 June 1987.
• 26 June is now recognized as the International Day in Support of Victims of Torture, in honor of the Convention. Since the convention’s entry into force, the absolute prohibition against torture and other acts of cruel, inhuman, or degrading treatment or punishment has become accepted as a principle of customary international law. As of October 2019, the Convention has 169 state parties

Tharoor wins Akademi’s 2019 award for English

• The Sahitya Akademi on Wednesday announced its annual literary awards for 2019 for works in 23 languages, including one for Shashi Tharoor’s non-fiction book about British rule in India.
• The Akademi announced that it would honour seven books of poetry, four novels, six books of short stories, three of essays and one each of non-fiction, autobiography and biography. The award, including ₹1 lakh in cash, would be presented at a ceremony on February 25, 2020, the Akademi said in a statement.
• ‘An Era of Darkness: The British Empire in India’ by Mr. Tharoor, who is a Congress MP, was selected in the English category.
• The awards honour works of poetry by Dr. Phukan Ch. Basumatry (Bodo), Dr. Nand Kishore Acharya (Hindi), Nilba A. Khandekar (Konkani), Kumar Manish Arvind (Maithili), V. Madhusoodanan Nair (Malayalam), Anuradha Patil (Marathi) and Prof. Penna Madhusudan (Sanskrit).
• Novels by Dr. Joysree Goswami Mahanta (Assamese), L. Birmangol Singh (Manipuri), Cho. Dharman (Tamil) and Bandi Narayana Swamy (Telugu) were also among the winners.
• Books of short stories by Abdul Ahad Hajini (Kashmiri), Tarun Kanti Mishra (Odia), Kirpal Kazak (Punjabi), Ramsawroop Kisan (Rajasthani), Kali Charan Hembram (Santali) and Ishwar Moorjani (Sindhi), an autobiography by Dr. Vijaya (Kannada) and a biography by Prof. Shafey Kidwai (Urdu) were also among the winners.
• The Sahitya Academy Award is a literary honour in India, which the Sahitya Akademi, India’s National Academy of Letters, annually confers on writers of the most outstanding books of literary merit published in any of the major Indian languages (24 languages, including the 22 listed in the Eighth Schedule of the Indian Constitution recognized by the Sahitya Akademi, New Delhi).

• Established in 1954, the award comprises a plaque and a cash prize of ₹ 1,00,000. The award’s purpose is to recognize and promote excellence in Indian writing and also acknowledge new trends. The annual process of selecting awardees runs for the preceding twelve months. The plaque awarded by the Sahitya Akademi was designed by the Indian filmmaker Satyajit Ray.
• Prior to this, the plaque occasionally was made of marble, but this practice was discontinued because of the excessive weight. During the IndoPakistan War of 1965, the plaque was substituted with national savings bonds

A duty to publish Limiting RTI responses based on locus standi of the applicants could create a chilling effect

• The Right to Information Act’s role in fostering a more informed citizenry and an accountable government has never been in doubt ever since its implementation in 2005. But there have been persistent and growing misgivings. Section 4 of the Act calls for pro-active and voluntary dissemination of information, but only a few Central and State institutions have published relevant information; here, Rajasthan has taken a lead through its Jan Soochna portal. The other problem has been persisting vacancies in the State and Central Information Commissions, which was raised in a plea in the Supreme Court on Monday.
• A three-judge Bench led by the CJI allowed the request and asked the Centre and States to expedite filling up the vacancies. The CJI also curiously observed that officials were sensing fear leading to paralysis of action due to the working of the RTI, going on to elaborate that the kind of queries that were sometimes being asked were not always in public spirit and were posed by people who had no “locus standi” in the matter regarding the queries. This argument by the CJI is difficult to accept as the RTI Act explicitly rejects the need for locus standi in Section 6(2) — “an applicant making request for information shall not be required to give any reason for requesting the information…”.
• This clause is present for vital reasons — seeking locus standi in order to respond to public requests could result in a chilling effect as public authorities (PAs) could choose to deny information to general citizens on subjective grounds. Besides, information commissioners and public officials have the authority to reject requests based on criteria that enable exemption from information disclosure. Data on RTI requests since 2005 show that the yearly rejection rate (requests rejected as a percentage of those received) has come down steadily to 4.7% in 2018-19. A change in the Act that seeks locus standi as a criterion could dramatically increase this number. Rather than focusing on locus standi, public authorities would be advised to provide for greater voluntary dissemination on government portals, which should ease their load.
• A Transparency Audit report submitted to the Central Information Commission (CIC) in November 2018 sought feedback from 2,092 PAs under the CIC to evaluate the implementation of Section 4 of the Act.
• Only 838 (40%) responded and even here, 35% of the PAs fared poorly with little transparency in parameters such as organisation and functions, budget and programme, e-governance, and other information disclosures.
• The other key misgiving with RTI implementation has been the persisting problem of vacancies in the CIC and State commissions — the CIC has four vacancies and 33,000 pending cases. After the top court’s directions, this lacuna should be addressed by governments quickly.
• A day after asserting at an election rally that those “creating a storm” against the Citizenship Amendment Act (CAA) can be “identified by their clothes itself”, Prime Minister Narendra Modi tweeted that “no Indian has anything to worry regarding this Act”. It is unfair to dismiss without careful consideration the government’s claim that Indians have nothing to fear from the CAA. Not even its critics can deny that all that the CAA does is to offer a benefit: citizenship. It does not take away anything from anyone. And, it offers the benefits of citizenship to persecuted religious minorities from Afghanistan, Pakistan and Bangladesh.
• True, it doesn’t offer this benefit to persecuted Ahmadiyyas or Shias from these countries. It is discriminatory towards persecuted non-Indians who are Muslims. But what has that got to do with Indians, or Indian Muslims, for that matter? As has been pointed out umpteen times by Home Minister Amit Shah, the CAA doesn’t even refer to Muslims. So why is it being said that this law targets Indian Muslims?

 No CAA without NRIC

• For an answer, we don’t need to look beyond the Home Minister’s own statements. Mr. Shah has repeatedly underscored two things: one, he will implement the National Register of Indian Citizens (NRIC), extending the NRC exercise conducted in Assam to the rest of India; and two, the sequence is all-important: he will implement the CAA first, and only after that, the NRIC.
• Put simply, the CAA is a safety net that will ensure, and insure, the citizenship of all Hindus, Sikhs, Christians, Buddhists, Jains and Paris — not just the lakhs of Hindus classed as “illegal migrants” by the Assam NRC, but also others all over India who might be categorised as “foreigners” when the NRIC is implemented.
• The citizenship of all of them will first be secured through the CAA, and only then, after all non-Muslims are protected with requisite citizenship-related documentation, will the all-India NRC or NRIC be implemented. If there is no NRIC, there would be no need for the CAA either.
• The NRIC’s objective is to divide the people domiciled in India into two categories: citizens and “illegal migrants”. The CAA’s objective is to pre-emptively rescue, prior to the NRIC exercise, the citizenship of all Indians except those whose religion finds no mention in the CAA.

Threat of omission

• It’s simple arithmetic: add all the religious groups under threat of exclusion by the NRIC (Hindus, Buddhists, Muslims, Sikhs, Jains, Christians, Parsis). Subtract from this set all the religious groups secured by the CAA (Hindus, Buddhists, Sikhs, Jains, Christians, Parsis). We are left only with Muslims as the remainder. They will be the only community excluded from the ‘legislative benevolence’ of the Indian state as incarnated in the CAA. Ready to be scooped up, like so many gasping fish, by the NRIC net.
• Every Indian who is puzzled by the intensity of the anti-CAA protests sweeping the country needs to answer a few simple questions: What happens when, after Hindu, Sikh, Buddhist, Jain, Parsi and Christian residents of India who are excluded by the NRIC are granted citizenship, thanks to the CAA, only Muslim “non-citizens” remain? Will these stateless people be sent to detention camps? Or will they be accorded an inferior status in a hierarchy of citizenship where non-Muslims occupy a higher position?
• Even if the government were to announce that it won’t implement the CAA, the very existence of this legislation is a danger to the social fabric of the country, for it is a tremendous enabler of hate speech. The world’s foremost experts on Genocide Prevention consider hate speech the prime harbinger of genocide. “The Holocaust did not start with the gas chambers. It started long before with hate speech,” observed Adama Dieng, the UN Secretary General’s Special Adviser on Prevention of Hate Speech, on Prevent Genocide Day this month. As a political tool, the CAB-NRIC combo has the potential to encourage hate speech, especially at election time. As an administrative tool, it weakens constitutional safeguards against genocidal machinations, which could prove deadly in the unlikely event of the world’s largest democracy mutating into a majoritarian state sympathetic to such machinations.

 Exclusionary precedents

• There is ample historical precedent for exclusionary citizenship laws and the ends they served. The Reich Citizenship Law of 1935 stripped German Jews of their citizenship, and everyone knows what came after. Closer home, the 1982 Citizenship Law in Myanmar rendered Rohingya Muslims stateless, despite the fact that they were indigenous to the Arakan region. Myanmar is currently facing charges of genocide at the International Court of Justice.
• Assurances by the government that “no Indian will lose citizenship” are to be welcomed. But anti-CAA protesters are convinced that under the CAA-NRIC regime, sections of Muslims will cease to be “Indians” anyway. Once they lose their citizenship, the government can still claim that no “Indian” has lost citizenship, for it is the government which decides who is an Indian and who isn’t.
• If it is indeed the case that all fears about the CAA are misplaced, and it is only “vested interests” that are misleading the nation, then it is easy for the Prime Minister to dispel such misapprehensions. Instead of blandly insisting that “not a single Indian will lose citizenship”, he only needs to declare categorically that the government will never, ever conduct anything like the NRIC. And he must repeat this assurance in every election rally, tweet it out, and reiterate it in his radio address. Can he do so?
•  If he cannot, or will not, then what does that say of the intent behind the CAA?
• In the system of criminal justice worldwide, including in India, underpinning the element of sentencing is the ‘Theory of Punishment’. This is classical law, proved so by having stood the test of time for centuries. It stipulates that there should be four elements of a systematic punishment imposed by the state:

1. The protection of society;
2.  The deterrence of criminality;
3.  The rehabilitation and reform of the criminal; and
4.   The retributive effect for the victims and society. Capital punishment, in its very essence, goes against the spirit of the ‘Theory of Punishment’, and by extension, natural justice.

• The first element, ‘protection of society,’ is not served by imposing the death sentence any better than by incarceration. This has been proven time and again as inmates have spent decades on death row, harming no one, but being brutalised by the inhuman punishment meted out to them. Second, there are several factors which effect criminal activity and deterrence is only one of them. In a UN survey, it was concluded that “capital punishment deters murder to a marginally greater extent than the threat of life imprisonment.” The report of the Justice J.S. Verma Committee said that capital punishment is a regressive step and may not provide deterrence. The committee recommended the life sentence for the most grievous of crimes.
• It is not just statistics that prove the case against deterrence, so does logic. A reasonable man is deterred not by the gravity of the sentence but by the detectability of the crime.
• Third, the facet of ‘reform and rehabilitation of the criminal’ is immediately nullified by the prospect of capital punishment, ad oculos.

• This leaves only the final element — ‘the retributive effect’. Killing should never be carried out based on the primal and emotive desire among human beings for revenge. Revenge is a personalised and emotional form of retribution, which often loses sight of proportionality.
• A comparative study of death row conflicts shows that the jurisprudence in this regard is skewed against the weaker sections. Justice P.N. Bhagwati said that “death penalty in its actual operation is discriminatory for it strikes mostly against the poor and deprived”. The reasons include lack of adequate legal assistance to the marginalised. The Death Penalty Project has conclusively shown the manner in which wrongful capital sentencing is carried out. In the United States alone, over 350 people have reportedly been wrongfully sentenced in the last century.
• Hence, in the light of the recent incidents of heinous violence perpetrated against women, it becomes imperative for the judiciary not give in to the public clamour for making capital punishment mandatory for rape convicts. Public angst and emotions cannot be an alternative to reason and logic. There needs to be better enforcement of law in response to valid questions on justice but death penalty holds no answers.

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