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1.Third and final round: On the tussle over Delhi’s status
Proposed Constitution Bench hearing should end the wrangling over NCT’s status
The complexities of the law governing the National Capital Territory (NCT) of Delhi will once again be under elaborate judicial focus. In what will be the third round of litigation in the dispute between the Union government and the Government of the NCT of Delhi, a Constitution Bench will embark on interpreting a couple of phrases in Article 239AA, which confers a unique status for Delhi. It would indeed seem unnecessary for another Constitution Bench after five judges had rendered an authoritative pronouncement in 2018 on various questions that arose from Article 239AA. However, the Chief Justice of India, Justice N.V. Ramana, has made it clear that the reference to a five-member Bench will be strictly limited to the interpretation of a couple of phrases that were not examined by the earlier Bench, and no other point will be reopened. Broadly, the 2018 verdict, through three concurring opinions, had ruled that Delhi was indeed a Union Territory, but the Lieutenant Governor, as the Administrator appointed by the President, should act as per the aid and advice of the Council of Ministers, in areas in which legislative power was conferred on Delhi’s Legislative Assembly. Under Article 239AA, except for police, public order and land, the Delhi Assembly can make law on all other matters in the State and Concurrent Lists ‘insofar as such matter is applicable to Union Territories’. The mandate of the hearing is to declare what this phrase means, and whether it is one more limitation on Delhi’s legislative, and by extension, executive powers.
The 2018 ruling limited the Lieutenant Governor’s domain by making it clear that not every decision required his concurrence. It had cautioned against the notion of representative democracy being negated, if legitimate decisions of the Council of Ministers were blocked merely because the Lieutenant Governor had a different view. The Lieutenant Governor’s power to refer “any matter” on which he disagreed with the elected regime did not mean he could raise a dispute on “every matter”. It is perhaps because of the underlying message that an unelected administrator should not undermine an elected administration that the Centre badly wanted a fresh reference to another Constitution Bench. It is indeed true that a split verdict by a two-judge Bench on the question whether ‘services’ fell under the Union government’s domain or the NCT government has flagged the absence of a determination in the Constitution Bench verdict on the question whether Entry 41 of the State List (services) is within the NCT’s executive and legislative domain. Entry 41 is not one of the excluded areas of legislation by the Delhi Assembly, but it has been argued that there are no services under the Delhi government and, therefore, it was not a matter applicable to the NCT at all. Settling this remaining question should give a quietus to the endless wrangling between the Modi government at the Centre and the Kejriwal regime in Delhi.
2.One more year: On the postponement of Hangzhou Asian Games
As the Asiad is put off, athletes have to rework preparations and priorities
In recent times, sport seemed to be breathing easy despite COVID-19’s long shadow. Yet, a surprising full stop has sprung up in a multi-disciplinary continental event with the postponement of the Asian Games at Hangzhou in China. That Shanghai has witnessed an outbreak which led to the enforcement of strict restrictions has obviously forced a rethink within the Chinese landscape. Scheduled to be held in September, the Asian Games needs a fresh window and the speculation is that like the Tokyo Olympics, which suffered a year’s postponement and was held in 2021, the Asiad too may spill over into 2023. In the current year featuring the World Championships, which was to be followed by the Commonwealth Games, the Asian Games was expected to be the big climax. This benchmark has now vanished, and athletes and sports bodies have to alter plans. Sportspersons train to gradually reach the ‘zone’ or the ‘peak’, when they maximise their chances of winning a coveted medal. It is linked to a monitored blend of training, nutrition and rest while the eye is locked on the event dates. However, a last-minute change scuppers even the best-laid plans and demands a recalibration from the concerned athlete, coaching staff and sports associations and nations.
The latest development offers a mixed bag for India, which finds better success rates in the Asiad and Commonwealth Games, unlike in the Olympics. But cutting across the varied spectrum of Indian sport, the indefinite postponement is seen both as a blessing and a curse. With the Asian Games serving as a qualification event for the Paris Olympics in 2024, Hockey India was initially mulling over fielding a second-string team at the Commonwealth Games and sending across its main squad for the Asiad. The apprehensions were centred around the difficulty of peaking twice in a year within a few months. But with China postponing the marquee event, a full-strength hockey outfit can now be sent to Birmingham for the Commonwealth Games. The same relief applies to other athletes too as they now have to focus only on the World Championships and Commonwealth Games. But for the 30-plus athletes eyeing a swansong, it would be difficult to stretch every sinew in the next year too. Runner Jinson Johnson, gold medallist in the 2018 Asiad, may have to train for an additional season. There are other complications as in the boxing calendar, 2023 competitions are the yardstick for Olympic qualification. An Asiad in that cycle would affect preparation. China had its reasons for the postponement, and the sporting world will need to rework preparations and priorities.
3.Allow HP police to get to the bottom of the Khalistan flags case, stop the politicking
The appearance of Khalistan flags and graffiti outside the Himachal Pradesh legislative assembly complex has set off alarm and HP police have moved to seal off all inter-state border crossings to nab those behind the incident. The developments have also kicked off a political blame game amid the state preparing for elections later this year.
The politicking over national security is unhelpful. Rather, this is a time for coordination between police forces of all neighbouring states to identify those behind this incident and study whether there are underlying conditions, if any, for Khalistan groups to find renewed traction in Punjab or elsewhere. For this, Himachal and Punjab police must collaborate and improve their intelligence gathering and sharing mechanisms. Already, HP police have trained their sights on the banned Sikhs for Justice group and booked its leader under UAPA.
Unfortunately, politics over inter-state policing has hit a new low after the controversial arrest of Delhi BJP leader Tejinder Singh Bagga by the Punjab police and the confrontation between Haryana, Delhi and Punjab police that ensued. Relations between the AAP government in Punjab and the BJP governments in the neighbourhood are also rocky.
The upcoming elections where BJP, Congress and AAP are fancying their chances in HP will worsen the name-calling. Political parties must recall the huge cost India and Punjab paid until the Khalistan insurgency was defeated in the early 1990s. Attempts to foment fresh trouble must be nipped in the bud.
4.124A & India: Sedition law has seen too many abuses & a very small conviction rate. Time for it to go
The Supreme Court’s decision last year to hear pleas that the sedition law no longer passes constitutional muster was based on a strong concern about the “enormous power of misuse” of the law. But in its written submission to the court on Saturday, GoI has forcefully argued that the 1962 Kedar Nath judgment is “a good law”, “needs no reconsideration”, and the remedy for any abuse lies in preventing it on “a case-to-case basis”. In arriving at this position, GoI seems to sidestep the issue of how Section 124A IPC has become so synonymous with arbitrary application that abuse of law is now its default rather than fringe condition.
Between 2016 and 2019, for example, the number of cases filed under Section 124A rose by 160% even as the rate of conviction dropped to 3%. In one telling instance, a sedition case was so insubstantial that the Allahabad high court told the state and the police that, “the unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans. The foundations of our nation are more enduring.” In fact, instead of protecting these foundations 124A arguably weakens them. It discourages dissent, the safety valve of democracy. Questioning and critiquing are critical to keeping various democratic institutions responsive to citizen needs and holding them accountable.
GoI’s argument that the challenge to the 1962 constitution bench’s verdict should be decided by a larger bench originates in virtuous theory and praxis, and this may well be where the case is headed. But as for the “needs of the state” that it is defending, subsequent stringent legislations such as the Unlawful Activities (Prevention) Act, 1967 and the National Security Act, 1980 make an 1870 colonial and anti-Independence law superfluous.
What has to be recognized is that a law which has “withstood the test of time” is not by definition a good law. World over and in India progress has happened and continues to do so by overturning juridical traditions that fall out of step with evolving societal mores. Petitioners are right to say that there has been a sea change in jurisprudence since 1962. A sedition law whose vague language invites arbitrary and frequently motivated application, which is expedient for police or the state but oppressive for many citizens, is more than ready for binning. SC must rid India of a law the country doesn’t need.
5.Repeal the sedition law
The law is antithetical to the march of democratic thought and expansion of rights, which have progressed far beyond what British lawmakers could have imagined in 1870
Every nation has a right to zealously guard its sovereignty from internal and external aggression, and, therefore, penal provisions to punish violence and threats to security are justified and necessary. But there is a raft of civil, criminal and anti-terror statutes to deal effectively with such exigencies. (Getty Images/iStockphoto)
Liking a social media post; cheering a team in a cricket match; criticising government policy or leaders – these are some of the grounds on which have authorities slapped sedition charges on Indian citizens in the past five years, underlining how the stringent provision, a relic of colonial-era law-making, was increasingly being used as a tool by governments of various dispensations and political ideologies to blunt dissent and free speech.
Section 124A of the Indian Penal Code was introduced by British administrators in 1870 to effectively muzzle the freedom struggle and dissent; though the United Kingdom repealed the provision in 2009, it has continued to not only remain on the books in India but also becomes preferred law for administrations looking to intimidate political opponents and making errant citizens fall in line in India. Though conviction remains abysmal – the National Crime Records Bureau found the conviction rate in 2019 to be around 3%, suggesting that many sedition cases were hollow and not grounded in material evidence – the difficulty in obtaining bail and the vagaries of the criminal justice system ensures that the threat of the charge is a significant deterrent for free expression.