The Hindu Editorial Analysis | 31st Oct ’19 | PDF Download

• The right to a fair hearing is at the heart of the rule of law. But in India today this notion increasingly appears to be a chimerical dream. The latest affront to the principle comes from an order delivered on October 23 by a five-judge, constitution bench of the Supreme Court of India in Indore Development Authority v. Manohar Lal. Here, in holding that an application seeking the recusal of Justice Arun Mishra, the presiding judge on the bench, was liable to be rejected, the court brushed aside with alarming alacrity the most rudimentary standards of natural justice.
• “Posterity,” wrote Justice Mishra in an order which was joined by a terse, concurring statement that each of the other four judges signed, “will not forgive me down the line for setting a bad precedent.” Now, it might well be difficult for us to assess how succeeding generations might look back on this decision. But we scarcely need the hindsight of the future to review the present actions, which tear asunder the basic ideals of fairness and rectitude that ought to undergird any reasonable system of justice.

Facts of the case

• In many ways, the facts leading up to the constitution of the five-judge bench speak for themselves. The issues involved in the case spring out of a reading of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR). This law, which replaced the colonial-era Land Acquisition Act of 1894, places a number of checks on the government’s power to expropriate property. Significantly, besides promising a more equitable compensation, the LARR mandates a social and environmental impact assessment before the state acquires any land. It also establishes a structure that ensures the rehabilitation and resettlement of those people whose lives are likely to be most affected by the taking of their properties. The objective is to ensure that the state’s supposedly sovereign power to acquire land is not used in a manner inimical to the people whose lands are taken.
• As highlighted by this writer in the article, “United by a common purpose” (Editorial page, The Hindu, March 1, 2018), Section 24(2) is one among many provisions which gives meaning to the LARR’s larger goals. It states that in all cases where an award has been made under the 1894 law five years or more prior to the commencement of the LARR (that is before the year 2009), wherever physical possession has not been taken or where compensation has not been paid, those earlier proceedings will lapse, and the land will vest once again with the original landowner. In January 2014, in interpreting this clause, a three-judge bench of the Supreme Court, in Pune Municipal Corporation v. Harakchand Solanki, adopted a liberal construal. It held that the word “paid” used in Section 24(2) did not envisage cases where the government had merely deposited amounts into its own treasuries. Even if the landowners had refused compensation, the court held, the government ought to have at the least deposited the money into court.
• This reading of Section 24(2) was not only correct as a matter of textual interpretation but was also in consonance with the larger goals of the new legislation. Indeed, as Namita Wahi of the Centre for Policy Research had pointed out, over the course of four years the judgment was followed by nearly 250 decisions by the Supreme Court and about a thousand High Court verdicts across the country.
• Yet, in February last year, a three-judge bench comprising Justices Arun Mishra, A.K. Goeland Mohan M. Shantanagoudar (who wrote a partial dissent), in Indore Development Authority v. Shailendra, held that in cases where a landowner refused compensation, it was sufficient if the state made a payment into the government’s treasury, and that there was no attendant obligation on it to deposit the money into court.

It is also about propriety

• To many, this might not appear to be an exceptional conclusion; some might even see this as a plausible interpretation of Section 24(2). But the problem here does not merely concern the enunciation of the law, but speaks rather to something deeper, to the principles of propriety that are integral to the court’s functioning. On that, there are at least two troublesome factors worth bearing in mind.

1. One, that the creation of the three-judge bench which heard the questions raised in Shailendra was itself a product of a reference made by a panel of two judges presided over by Justice Mishra.
2. Two, that the majority’s judgment in Shailendra, which was authored by Justice Mishra, did not merely disagree with the finding in Pune Municipal Corporation but also went on to hold that the earlier ruling was delivered per incuriam, or, in other words, that the verdict was characterised by a lack of proper regard for the law.

• The firestorm that ensued out of all of this ultimately resulted in the Chief Justice constituting a five-judge bench, once again at the instance of a reference made by a bench presided over by Justice Mishra. As Gautam Bhatia has written (in a blog), what this meant was that the same judge had been involved in the following:

1. first, in doubting the correctness of Pune Municipal Corporation, when sitting as part of a two-judge panel; and
2. second, in holding the ruling invalid when sitting later as part of a three-judge panel.
3. And now that very judge had been entrusted with the job of presiding over a five-judge bench that was meant to definitively settle the wrangle.

•  This, therefore, was what in Latin is described as res ipsa loquitur, or, literally, the matter speaking for itself.
• Primary justifications In his order, Justice Mishra offers four primary reasons justifying his decision not to recuse.

1. First, a recusal, he writes, would give room to an “unscrupulous litigant to have a Judge of their choice”. That recusals should not be used as a means to allow a party to choose its own bench is axiomatic. We certainly do not want our judges to accede to requests for recusal merely because one has been made. But all that the applicants had done here was to highlight that Justice Mishra’s predisposition was so strong that he had not only made his mind up earlier, but that he had chosen to impinge on commonly accepted rules of precedent that required benches of coordinate strength to follow earlier rulings.
2. Second, Justice Mishra asserts that “affronts, jibes, and consciously planned snubs” ought not to deter the bench from discharging its “onerous responsibility”. To this, one can only say that it ill-behoves the Supreme Court to make ad hominem claims on what really are unnamed groups.
3. Third, Justice Mishra cites a host of cases in which judges who were originally part of a referring bench were later called upon to participate in the larger bench’s hearing. In none of the cases, however, had a judge formed so conclusive an opinion as Justice Mishra had on Section 24(2), and, most certainly, in none of these cases had a judge disregarded the doctrine of stare decisis — the basic legal principle of determining the outcome of a dispute according to precedent — to unsettle an established interpretation of the law.
4. Finally, Justice Mishra makes an appeal to his own conscience, which, he says, compels him to hear the case. We need not doubt this claim. But the broader concern remains, because the bright-line rules on recusal require an altogether different analysis. They demand that a judge appeals not to his own moral sense but to consider what a reasonable person might make of his decision to hear a case. Or, as Justice Felix Frankfurter of the U.S. Supreme Court had written, in a case later cited by Justice M.N. Venkatachaliah (1987), “When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, judges recuse themselves.” Eventually, the constitution bench might well deliver a faultless verdict, but to any such ruling this question will stay rooted like a limpet on a rock: is justice seen to be done?

Minority voices

• First, only 23 EU MPs visited the Valley. Four chose not to. These 23 did so in their individual capacity as the European Union mission in Delhi has made clear. They were drawn from parties such as France’s National Rally, Germany’s Alternative for Germany (AfD), the U.K.’s Brexit, Italy’s Forza Italia and Poland’s Law and Justice Party.
• These are right-wing parties best known for their anti-immigrant stand, which often means they are anti-Muslim. Equally importantly, these parties do not represent the political mainstream in their countries. They’re minority voices.
•  However one MP, Chris Davies, a Liberal Democrat from Britain, says he was disinvited when he said he wanted to meet ordinary people without police and army security. “I am not prepared to take part in a PR stunt for the Modi government and pretend that all is well,” he said. Another British EU MP, Theresa Griffin, tweeted along similar lines. Do these discordant voices suggest the others were willing to be co-opted as part of a thinly-disguised PR exercise?
•  A second concern is the organisers. It was arranged by Madi Sharma, a Brussels-based British Person of Indian Origin, who runs a non-governmental organisation called Women’s Economic and Social Think Tank. She describes herself as an “international business broker”.
•  In her invitation letter she offered a visit to Kashmir and a meeting with Prime Minister Narendra Modi who, she claimed, “would like to meet influential decision-makers from the European Union”. Does this suggest some form of prior contact with the Prime Minister, whether direct or indirect? Newspaper reports say the cost of the visit (flight and accommodation) was sponsored by the hitherto little-known Delhi-based International Institute for NonAligned Studies (IINS), whose gates are inexplicably locked. This raises the further question how has Madi Sharma become so influential and where does the IINS get its resources from?
• The EU MPs had access right to the very top which is, in fact, a third intriguing issue. They met the Prime Minister and the Vice-President of India, lunched with the National Security Adviser and dined with the External Affairs Minister. In Kashmir, they met the Governor, the GoC-in-C of 15 Corps and the Chief Secretary. Clearly the Indian establishment went out of its way. Does this suggest Madi Sharma and IINS are fronts for the government?
• A fourth issue is the Kashmiri people they met as well as those they were not permitted access to. Reports say they interacted with 15 delegations comprising traders, panchayat leaders, students, ex-servicemen, a women’s group and some civil society members. They did not, however, meet officials of the state’s Chamber of Commerce & Industry, houseboat owners or top politicians.

 Sanitised visit

• At least one report claims their conversations were carefully monitored. The Economic Times says “a group of businessmen who raised (the) issue of abrogation of special status and business losses due to the ongoing clampdown were interrupted by local administration officials and cued to change the topic”.
•  Equally telling is what happened in Srinagar and the Valley on the day the EU MPs visited. Militants shot dead five labourers in Kulgam, perhaps the worst terror incident since August 5. In Srinagar, according to The Times of India, “there were reports of massive stone pelting” and “intense clashes … where security forces fired tear gas”. The paper also reports “protestors targeted private vehicles set(ting) some on fire”. Finally, there was a complete shutdown of shops and business establishments. Would this look like normalcy to the visiting EU MPs? After all, that’s what the NSA had told them to expect.
• At least two of the MPs accepted they were given a sanitised view. Hermann Tertsch and James Heappey said they were “kept away from some people”. Another, Bernhard Zimniok of Germany, said the European community should be willing to mediate between India and Pakistan if asked by the two countries. Were these responses Mr. Modi anticipated? On their last morning at a carefully controlled press conference, where only select journalists were invited and the questions vetted, the EU MPs maintained a discreet silence over the controversy their visit has created. They said they had come to get facts and information. They claimed they are not interfering in India’s politics but terror is a common problem. If this suggests they are interpreting developments in Kashmir in terms of the impact on terror, that would be only part of the government’s justification for what it’s done. And we don’t know whether they accept the government’s line that the majority of Kashmiris are happy with the constitutional changes. However, some of them publicly advised the Modi government to talk to Pakistan. But is that what it wants to hear?
• On the key issue of human rights, which is a cause for concern in western chancelleries and media, we don’t know what impression the MPs took away. Their visit happened on a day when the UNHRC said “there have been several allegations of excessive use of force including … pellet-firing shot guns, tear gas and rubber bullets by security forces … unconfirmed reports of at least six civilian killings … (and) a number of allegations of torture and ill-treatment of people held in detention”. Will the EU MPs rebut this?
• Finally, there’s a question of paramount domestic interest. Whilst India as a democracy should welcome anyone who wants to visit Kashmir, has this visit internationalised the State to the country’s disadvantage? It happened at a time when Indian MPs, foreign journalists and Delhi-based diplomats are not permitted to visit the Valley. This is not unknown outside India. One of the MPs, Nicolaus Fest, said opposition MPs should be permitted. So, now, if European foreign offices ask is India inviting or, at least, welcoming the endorsement of their politicians, what would be our answer? After this visit won’t our traditional ‘no’ seem contradictory or, at least, overtaken by events?

 Visiting Kashmir

• The Centre must change the situation in Kashmir, not just the global perception of it
• On the face of it, the government’s decision to allow the first foreign delegation to visit Srinagar, nearly three months after the decision to amend Article 370 of the Constitution and split the State of Jammu and Kashmir into two Union Territories, is a positive step. After a clampdown, arrests of political activists and mainstream leaders, communication blockades and a denial of access to politicians from the rest of India, the invitation to more than 20 Members of the European Parliament (MEPs) could pave the way for more openness in the State, more such delegations, which would help the government with its claims of “normalcy” there. Instead, the manner in which the visit was organised has eroded rather than enhanced its credibility.
• It is puzzling why the government honoured invitations by an unknown businessperson in Brussels linked to an equally obscure think tank in Delhi. That people of unclear standing and antecedents have such easy access to the Prime Minister’s office, so as to be issuing “VIP invitations” on his behalf, and to arrange meetings with the Vice-President of India, National Security Adviser and External Affairs Minister smacks of an unseemly backdoor arrangement not conducive to democratic transparency. The choice of this delegation has also raised eyebrows. A majority of those travelling to Srinagar belong to anti-immigration and far-right parties in the U.K., France, Italy, Poland and Germany. That they were taken to Srinagar, but given, by their own admission, very little access to locals, seems to defeat the visit’s purpose. In addition, the brutal killing of five migrant workers in the Valley by suspected Hizbul Mujahideen terrorists on Tuesday appears to reinforce security concerns over any sense of normalcy there. The government must take stock of whether such heavily scripted photo opportunities pass for real value in any image-building exercise.
• Having invited the delegation, however, the government must listen carefully to their impressions of the visit. While most endorsed India’s stand of Kashmir’s reorganisation being an “internal matter” and said they “stand by” India on the subject of terrorism, at least one of the MEPs asked why Indian MPs have not been allowed to visit. It is ironic that the government chose to take European MEPs to Srinagar and speak to the media there, but has successfully blocked Opposition leaders from visiting, and the few who have received Supreme Court permission to travel there have been barred from speaking or making political comments. It must also be remembered that while the MEPs toured Kashmir, one of India’s most senior parliamentarians, former Cabinet Minister and former Chief Minister Farooq Abdullah is detained. Thousands of other Kashmiris, many of whom have not even been charged in the past nearly three months, are in prisons within and outside Kashmir. More than 50,000 extra security personnel sent in August remain in place. And both communications and the movement of people are still severely restricted. Rather than focusing on image-building, the government would be better placed if it works on improving the situation in Jammu and Kashmir, which remains grim for ordinary civilians on a daily basis.
•  Still a developing country India’s publicity overdrive about development can come back to bite it at the WTO While on the one hand, the official narrative in India is that of a country making rapid developmental strides since 2014, on the other, when it comes to developmental status at the World Trade Organization (WTO), India is trying hard to prove that it is a poor country. Developing country status
• Why this dichotomy? While the former assertion is made to please the domestic constituency, the latter proclamation is because of U.S. President Donald Trump’s threat that countries like India should be stripped off their ‘developing country’ status in the WTO. Under the WTO system, generally, countries are designated as developed, developing, and least developed countries (LDCs). Article IX.2 of the WTO agreement provides that the LDC status of a country in the WTO is based on such status being recognised by the UN. But the agreement does not mention any criterion to determine a ‘developing country’ status.
• The uneven level of development between developed and developing countries in the WTO is a well-recognised fact. Article XVIII of the General Agreement on Tariffs and Trade (GATT) recognises that attaining the objectives of this agreement would require facilitating the progressive development of those countries that can only support low levels of development and are at the early stages of development.
• Accordingly, countries self-designate themselves as ‘developing country’ to take advantage of provisions like Article XVIII of GATT and other special and differential treatment (S&DT) provisions in the WTO agreements. These provisions are aimed at increasing trade opportunities for developing countries, ensuring longer transitional periods to comply with WTO obligations, and affording technical assistance to countries, among other things. In January 2019, the U.S. made a formal submission to the WTO that countries like India are no more ‘developing countries’ and thus should not enjoy the S&DT benefits. It presented data such as the fact that India’s GDP has grown from $0.60 trillion in 1995 to $2.63 trillion in 2017.
• The U.S. proposed that any country that meets one of the following criteria shall not be eligible for S&DT benefits: membership of, or seeking accession to OECD; membership of G20; share in world exports exceeding 0.5% or classified as high-income group by the World Bank.
• India is a member of the G20 and its share in world exports is around 1.7% as of early 2019. So, as per these criteria, India will not qualify as a developing country. While graduating to a ‘developed country’ status would have been a matter of joy, the ground reality is very different. India rightly countered the U.S.’s argument. In a paper submitted to the WTO, it gave several numbers to show that it is still a poor country and thus requires S&DT provisions. For example, the paper showed that India’s GDP per capita is very low; India has 364 million people living in multidimensional poverty; the domestic subsidies provided to per farmer is a meagre $227; and India has a very low research and development capacity.
• U.S. threat
• Unimpressed by these numbers, the U.S., in July, declared that if substantial progress were not made in the WTO in reforming the determination of ‘developing country’ status, it would, within three months, unilaterally stop treating certain countries as ‘developing country’. Thus, the U.S. would stop giving trade benefits to such countries. Despite the bonhomie displayed by President Donald Trump and Prime Minister Narendra Modi in U.S. in September, the U.S. has renewed this threat recently to mount pressure. A few days back, South Korea capitulated to this pressure, giving up its ‘developing country’ status. The heat is on India.
• Any unilateral action by the U.S. would be a violation of international law and yet another onslaught on trade multilateralism. At the same time, the Indian political leadership also needs to refrain from being on a publicity overdrive about India’s development. At times, its own rhetoric can come back to bite India.

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