Tag: India

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General Politics

Article 142 of the Indian Constitution

Recently, the Supreme Court in the so called “Bulldozer Justice” interim order, referred to the use of Article 142 of the Constitution thus piquing my interest.

The Supreme Court was hearing petitions, about certain State  Governments, who were demolishing the homes of individuals accused of crimes, using bulldozers as a punitive measure. The Court passed an interim order pausing till the next hearing, any demolition activities across the country without prior court permission. They excluded demolitions that pertained to public encroachments like illegal constructions on roads or public spaces.

When the Solicitor General, Tushar Mehta, representing one of the State Governments, objected to the order, arguing that it unduly restricts the powers of statutory authorities, the Bench said that the directive was being issued under the special powers granted by Article 142 of the Constitution.

This Article is a unique tool that lets the Supreme Court deliver justice in cases where existing laws might not cut it. But what exactly is Article 142, and how does it impact the justice system in India?

What is Article 142?

Please find below the excerpt of the Article from the Constitution:

“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc

(1)The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2)Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. “

Article 142 gives the Supreme Court the power to pass any order or decree needed for “doing complete justice” in any case before it. In simple terms, this provision allows the Court to go beyond the existing laws and technicalities to make sure justice is served.

It’s important to note that while laws govern the land, there are often situations where strictly applying these laws might not fully address the complexities of a particular case. Article 142 lets the Court step in and fill those gaps, ensuring that justice is delivered.

For example, in cases where laws may be outdated or don’t cover certain modern issues, or when the legal process is too slow or burdensome, Article 142 gives the Supreme Court the flexibility to issue judgments that directly address the problem at hand.

Key Features of Article 142

  • Discretionary Power: Article 142 gives the Supreme Court wide-ranging powers. The Court can issue orders related to attendance, document discovery, and even deal with contempt of court issues. This flexibility allows the Court to act in ways that ensure justice is not delayed or denied.
  • Going Beyond Ordinary Law: The Court can use Article 142 to bypass legal restrictions if they stand in the way of delivering justice. This doesn’t mean the Court acts arbitrarily, but it does give it room to maneuver when standard laws are inadequate.
  • Ensuring “Complete Justice: The essence of Article 142 is that it seeks to provide full justice, even in situations where laws may be unclear, insufficient, or outdated.

Some Real-Life Examples of Article 142 in Action

  • One of the instances where the Supreme Court invoked Article 142 is in the Bhopal Gas Tragedy case. The Court used this article to ensure that victims of the tragedy received compensation, even though existing laws at the time weren’t equipped to handle such large-scale disaster relief.
  • In another instance, the Court used Article 142 to allow divorces based on the “irretrievable breakdown of marriage”, even though this specific ground wasn’t mentioned in the Hindu Marriage Act. This allowed the Court to address situations where couples were stuck in irreparable marriages but couldn’t get a divorce because the law didn’t recognize such cases.
  • More recently, Article 142 came into the spotlight during the “Chandigarh Mayoral Poll” case, where the Supreme Court overturned the results of a mayoral election due to misconduct by the returning officer. By invoking Article 142, the Court ensured that electoral integrity was maintained, even though the legal process might not have offered a straightforward remedy.

Guidelines for the use of Article 142

In a recent Landmark Judgement – “High Court Bar Association Allahabad v. The State of Uttar Pradesh 2024 INSC 150 (29 February 2024)”, the Supreme Court laid down the following guidelines for the exercise of its powers under Article 142 of the Constitution:

  • It cannot be exercised to nullify the benefits derived by a large number of litigants based on judicial orders validly passed in their favour;
  • The Court cannot ignore the substantive rights of the litigants;
  • The Court can issue directions to the Courts for streamlining procedural issues, however, the Court cannot affect the substantive rights of those litigants who are not parties to the case before it. The right to be heard before an adverse order is passed is a substantive right; and
  • It must not defeat the principles of natural justice

Conclusion

Article 142 is important because it gives the Supreme Court a tool to ensure that justice is not limited by the technicalities of outdated laws or procedural delays. It allows the judiciary to act swiftly and effectively when necessary, ensuring that the spirit of justice prevails over the letter of the law.  However, this power is not without its limitations. The Court has to be careful not to overstep its bounds and ensure that the use of Article 142 does not infringe on the fundamental rights of individuals or the principles of natural justice.

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General Politics Uncategorized

A Missed Opportunity: The Cancellation of Lateral Entry in Government Recruitment

A few days back, the UPSC had issued an advertisement seeking lateral entry of talent into government service for several posts of Joint Secretary, Director, and Deputy Secretary levels. This created a buzz amongst many of us in the Corporate Sector. I thought it was a very good move to add talent and bring in fresh perspectives, new ideas, and specialized skills into the government.

However, there was criticism from the opposition parties because the advertisement did not mention reservations for Scheduled Castes (SCs) and Scheduled Tribes (STs) in the recruitment process.  One of the political parties which is part of the NDA government also criticized the move.  This move by the government was painted as an attack on the Constitution for ignoring reservations.

Yesterday, the Indian government decided to cancel the planned lateral entry. I believe this move is disappointing and undermines the potential for improving the efficiency and effectiveness of government. While it is true that ensuring reservations of SCs & STs in government jobs is crucial, it is important to note that the cancelled recruitment process was meant for specialized positions requiring specific skills and expertise, not for generalist roles.

Moreover, as Karthik Muralidharan, author of “Accelerating India’s Development: A State-Led Roadmap for Effective Governance,” argues, the lack of state capacity is one of the biggest hurdles to India’s development. He highlights the need for a more effective state, emphasizing state-level reforms as critical for India’s advancement. Lateral entry of talent with specialized skills and expertise could have been a crucial step towards building that capacity.

While I strongly believe in social justice and agree that reservations are required, such a policy need not be applied blindly in all situations. It is already well accepted that reservations are not applicable for Single Post cadres in the Government.  If reservations have to be incorporated even for lateral recruitment, the government may not be able to fill the positions or will need to create additional positions just to fill the quota.

The cancellation is a step backwards that will ultimately harm the country’s development prospects. Instead of cancelling the lateral entry process, the government should have explored ways to ensure that it is implemented in a fair and equitable manner.  

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General Healthcare

The Unending Nightmare of Violence Against Women

As a father of two daughters, the recent rape and murder of a young medical student in Kolkata has resulted in despair and anger https://www.thehindu.com/news/national/west-bengal/in-kolkata-rape-murder-and-rampage/article68532922.ece.  My initial response was to ignore the news and the commentary – this after all didn’t happen in Bengaluru – the city I live in. But the protests by the medical fraternity across India forced me to face the reality – if it can happen in Kolkatta – it can happen anywhere.

The details of the crime are too gruesome to recount. But the image of that young woman, her dreams and aspirations extinguished in an act of unimaginable cruelty, will forever haunt me. It is a chilling reminder of the vulnerability of women in our society, even within the supposed safety of a hospital.

The statistics paint a grim picture. India reports over 87 rape cases every day, and the actual number is likely much higher due to underreporting. Every 15 minutes, a woman is subjected to some form of sexual violence. These are not just numbers; they represent the shattered lives of countless women, their families, and their communities.

The problem is not a lack of laws. India has some of the strictest anti-rape laws in the world. The problem is the lack of implementation, the lack of accountability, the lack of empathy. We live in a society where victim-blaming is rampant, where women are told to dress modestly, to stay indoors, to not venture out alone. This is not the solution. The solution lies in changing mindsets, in holding perpetrators accountable, in creating a safe and secure environment for women.

We need to raise our voices against this injustice. We need to educate our sons to respect women, to treat them as equals. We need to hold our leaders accountable for ensuring the safety of women. We need to create a society where women can walk freely, without fear, without shame.

Here are a few actions that I have listed that we can all take:

  1. Demand justice for the victim and her family: Sign petitions, participate in protests, and make our voices heard. These protests have resulted in the Supreme Court of India taking suo moto notice of the case and setting up a task force on safety – https://www.ndtv.com/india-news/will-set-up-national-task-force-of-doctors-on-hospital-safety-chief-justice-6375831
  2. Educate our children about gender equality and respect for women: Teach them to challenge harmful stereotypes and to stand up against violence. We should have modules on this in in schools and colleges.
  3. Support organizations working towards women’s safety:  Donate our time, money, or resources to NGOs and initiatives that are working to create a safer environment for women.
  4. Speak up against victim-blaming and slut-shaming: Challenge these harmful narratives whenever we encounter them.

As a father, I dream of a world where my daughters can walk freely, without fear, and pursue their dreams and aspirations without being subjected to violence or discrimination. A world where they are treated with the respect and dignity they deserve.  This dream can become a reality if we all work together to make it happen. Let us be the generation that creates a society where women are safe, empowered, and free.

Categories
General Politics

Asset Monetization in India

The Indian central government has recently announced an ambitious Asset Monetization Plan. The objective of this plan is to offer existing government owned infrastructure assets(“Brownfield” assets) to private investors, thereby generating fresh capital. The newly generated capital can then be used for further infrastructure investments, without adding to public debt. The infrastructure assets will be offered in various sectors – Roads, Railways, Warehousing, Ports, Airports, Telecom, Power Generation, Power Transmission, Natural Gas pipelines, Real Estate as well as other assets like Sports Stadia. Over 6 Trillion INR(81 Bill USD) will be offered over the next 4 years under this Plan.

Unlike privatization, the government will not be giving up ownership control of the assets. Instead, the assets will be returned to full control of the government after a pre-determined number of years. 

Let us examine the impact on the stakeholders involved – Government, Private Investors and Indian Citizens.

  • Government : This allows the government to raise money from existing assets without increasing debt. This also side-steps the politically unpopular discourse around privatization. For this to work, the amount that can be generated upfront has to be more than the NPV of the current predicted earning streams of that asset. For example, if the asset is a road, the upfront money has to be more than the discounted cash flows of profits(from toll charges) that are currently being generated/projected over the next few years. The key assumption is that the asset is underutilized from an earnings perspective. It is assumed that a private operator can either generate more revenues or reduce cost of operations or do both. However, the government will need to handle any blowback that may occur if the private operators provide inadequate service to the citizens.
  • Private Investors : Strategic investors(companies like Reliance, Adanis etc) would be interested if they believe a) they can operate these assets better than the government and/or b) the asset will provide synergetic value to their other businesses. Institutional investors who are typically long term investors like pension funds & sovereign funds, would be interested if they believe that the risk adjusted returns are higher than government bonds. India’s experience in BOTs & PPPs for greenfield projects has been mixed and investor interest will be based on past experiences, legal issues & contractual obligations that the government will lay out for that asset.
  • Indian Citizens : Private operators are very likely to offer better customer experience to Citizens than what the government is currently offering. However, citizens who do not pay full prices for the services(either through avoidance or special political considerations) will get impacted. Citizens also benefit indirectly as the government will be able to raise vast sums of money without increasing debt or taxes.  Citizens could also benefit from the innovative uses of the asset by the private players – for example new retail stores & office space in assets like railway stations.

I believe that this is a good move by the central government and opens up interesting opportunities for infrastructure players in India. The government could also look at other sectors in the next phase – for example in healthcare, there are medical diagnostic assets (CTS/MRIs) that can be potentially monetized by offering it to diagnostic chains.

Categories
General Politics

Republic Day Reflections

26th January, 2021 is India’s 71st Republic Day. In 1950, this was the day on which the Constitution of India came into effect. The Constitution was written by the Constituent Assembly of India, which had its first meeting on 9th December, 1946. While many of us may be familiar with the Preamble, fundamental rights, directive principles and some of the popular Articles like Article 14(equality before law); it is fascinating that the Indian Constitution has enabled India to become the largest democracy in the world, while several countries who got Independence around the same time, in the 1940s & 1950s have struggled with democracy.

Madhav Khosla’s book – India’s Founding Moment, lays out, that ‘democracy was being instituted in a difficult setting: poor and illiterate; divided by caste, religion, and language; and burdened by centuries of tradition’. It is in these circumstances, that the Constitution was framed. Madhav describes what he calls the ‘founding schema’ of the Constitution in terms of three key aspects:

  • Detailed Codification:  The Indian Constitution, is often referred to as the world’s longest written constitution.  According to Madhav, the Constitution had to play the role of a political teacher to the citizens, because of the circumstances. A striking example of codification is the Directive Principles, that is binding on the government but judicially unenforceable.  Also unlike other constitutions, the Constitution guaranteed certain rights like the right to freedom of speech, but also limited such rights.
  • Choice of a strong centralized state and rejection of localism:  There were a lot of discussion on the nature of the republic – regional autonomy, self-governance at the village level etc. The final decision was for a strong center. It was felt by the framers that localism would prevent individuals to assert their choices as they would be bound by their communities. Though India is technically federal, the power of the center is significantly higher compared to other federal countries.
  • Representation centered on individuals: Universal suffrage was adopted in spite of the magnitude of the task of conducting the world’s largest elections. In the US, women got to vote in 1920 almost 140 years after the establishment of the nation. While there was debate in India, about restricting voting based on literacy and wealth, such discussions were rejected. Communal based representation which was prevalent in British ruled India, was also rejected. Today every individual has a vote irrespective of their identity.

As someone who was not born during the framing of the Constitution, I am deeply grateful to the framers, who gave us a Constitution, that has enabled India to make great strides as democracy. Happy Republic Day!