THE HINDU EDITORIA- MARCH 8, 2022

THE HINDU EDITORIAL- MARCH 8, 2022

 

A house of cards Systemic risks stemming from misdeeds at the NSE have evinced lacklustre response The Sunday evening arrest of Chitra Ramkrishna, the former MD and CEO of India’s largest stock exchange, by the Central Bureau of Investigation (CBI), should change the course of what has been a laidback probe into alleged misuse of exchange data by market players and jarring- even surreal – governance lapses. A Delhi court has granted CBI sleuths seven days to interrogate the former National stock Exchange (NSE) boss, about a month after the stock market watchdog, SEBI, passed a 190-page order that has made headlines for its assertions about Ms. Ramkrishna sharing confidential internal information with an unknown person, Separately, the CBI has got extended custody of Anand Subramanian, the NSE’s former group operating officer, hired ostensibly at the behest of the unknown yogi, disregarding the kind of internal controls and governance norms one expects from and institution of such systemic importance in the financial markets. The catchy details must not detract from the larger question arising from the deployment of co-location services and the lacunae in India’s oversight mechanisms over its capital markets reflected in the multi-layered failure to crack down on the wrongdoings at the NSE. The co-location services offered by the NSE, which give market operators willing to pay a premium a head start on exchange trading data and refine their own algorithms for high-frequency trades, are permitted by SEBI but were ostensibly misused by certain players. The NSE’s case entails and unfair advantage provided to some brokers within its co-location user community. Whatever the defenders of such services may say, the premise of giving players with deeper pockets quicker and more information than the average retail investor does not gel with an open market philosophy. That institutional mechanisms, from the NSE’s board and auditors, to SEBI, and independent regulator accountable to Parliament, have not delivered, is a larger worry. Nearly three years have passed between SEBI’s 624 crore rupees fine on the NSE for misuse of its co-location services, and the latest order against its former top brass. A matter where the sanctity of the entire market comes under a cloud should have been treated with a take more urgency. The CBI special court has observed that SEBI, which began this probe in 2016, has been ‘to kind and gentle’, while the CBI, after filing an FIR in 2018, and has been ‘most lackadaisical’. With a new SEBI chief in place, the Government, led by the Finance Minister who is reviewing the handling of the NSE case, must ensure some deterrent action is accompanied by a review of checks and balances in current governance structures.   Terror in Peshawar Islamist terrorists are seeking to set off a Sunni-Shia sectarian war in Af-Pak region The suicide attack at a Shia mosque in Peshawar, killing at least 62 people, is a grave reminder of Pakistan’s growing security challenges after the Taliban’s return to power in Afghanistan and the continued persecution that the Shia minority is facing in the Af-Pak region. This was the deadliest attack in Pakistan since the 2018 bombing of Quetta, killing 149 people. The Islamic State terrorist organization, which has carried out a number of suicide attacks in Afghanistan ever since the Taliban captured Kabul in August 2021, has claimed responsibility for the bombing. The IS’s sectarian animosity towards the Shias is well-known. In Iraq and Syria, the IS has carried out systematic attacks against the Shias, who they call “rejectionists” of Islam just because they belong to a different branch of the faith. In Afghanistan, the IS-Khorasan has targeted religious minorities such as Shias and Sikhs. They use sectarian attacks to drum up support for their murderous ideology among Sunni hardliners. Earlier in Afghanistan, the IS-K was confined to the eastern province of Nangarhar. But the complete breakdown of security in the last phase of the Taliban’s insurgency and the collapse of the Islamic Republic of President Ashraf Ghani last year appears to have given the IS a fresh lease of life. The Peshawar attack suggests that the IS threat is now spreading across the porous border to Pakistan. Shia, who make up some 20% of Pakistan’s population, face growing sectarian violence by extremist groups and a state crackdown under the infamous blasphemy law? The Ahl-e-Sunnat-Wal-Jamaat and Tehreek-e-Labbaik Pakistan, two hard-line Sunni groups, have been at the forefront of an anti-Shia campaign in the country. In July 2020, the Punjab Assembly passed a Bill (Tahaffuz-E-Bunyad-e-Islam) which supported only Sunni interpretation of Islam. Terrorist organizations such them IS are trying to exploit these existing sectarian hostilities by carrying out attacks on Shia mosques. What they want in Pakistan and Afghanistan is the same as what they have wanted in Iraq and Syria – a Shia-Sunni sectarian civil war. What makes the threat dangerous this time is the political change in Afghanistan. As the Taliban became the rulers of Afghanistan, the IS emerged as the main armed opposition to the Taliban. The Taliban’s relationship with the Tehreek-i-Taliban Pakistan (TTP, also called Pakistan Taliban) also makes the security situation complicated for Pakistan. Islamabad supported the Afghan Taliban to capture power in Kabul. The Afghan Taliban backs the TTP, their ideological brethren, who are fighting Pakistani forces. As the security situation remains fragile in the Af-Pak region, groups such as the IS are swiftly pushing their terror agenda. The Peshawar attack should serve as a warning to Pakistan, which sees the wheel of jihadism returning. If it does not check the widespread anti-Shia narrative and find a way to tackle the security challenges posed by both the TTP and the IS-K, its borderlands could once again turn to anarchy and sectarian bloodletting.

‘Sealed cover’ jurisprudence is appalling As the MediaOne case shows a judiciary that is a mute spectator to any executive action highlights democratic decay KALEESWARAM RAJ & THULASI K. RAJ A Division Bench of the Kerala High Court has dismissed the appeal filed by MediaOne, a television channel in Kerala, whose license the Ministry of Information and Broadcasting has refused to renew. The Ministry had said that the license could not be renewed for reasons related to national security. The stand of the Government was endorsed by both the Single and Division Benches of the High Court. In this context, the judgments set a dangerous precedent for free speech rights and procedural justice. Suspended rights A whole set of rights are directly hit by the ban. The first is the obvious one: the right to freedom of speech and expression of the television channel. The rights to association, occupation and business are also impacted. Moreover, the viewers also have a right to receive ideas and information. All these rights are altogether suspended by the executive. The only contingencies in which these rights under Article 19(1) can be interfered with are reasonable restrictions under Article 19(2). Among others like public order, incitement to an offence, it lists ‘security of the State’ as a ground. However, the trouble emanating from the MediaOne judgment is that the state need not even show that its security is threatened. It can conveniently choose the ‘sealed cover’ route. The jurisprudence of ‘sealed process of judicial review is significant since it holds the executive accountable. The executive must cogently answer its action –especially when fundamental rights such as free speech are curtailed. India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights. The Supreme Court of India has repeatedly held that judicial review of executive action is the basic feature of the Constitution. The decisions in Minerva Mills’s vs Union of India (1980) and L. Chandra Kumar vs Union of India (1997) reiterated this fundamental principle. If the executive wishes to limit rights – in this case, censor or restrict speech – it must show that the test of reasonable restrictions is satisfied. This principle is the bedrock of judicial review. The ‘sealed cover’ practice inverses this position. The moment the executive utters ‘national security’, courts often permit them to inform the justification in a ‘sealed cover’. These ‘reasons’ are not disclosed to the party whose rights are clearly at stake. The court satisfies itself of the defense of the state and dismisses the petition. MediaOne, the channel that has been censored, is completely in the dark over the reasons for the ban. It was never heard not its version ascertained. Endorsed yet blocked The judgment creates a situation that endorses the breach of fundamental rights on the one hand, and blocks remedy for the victim through a court of law and a process known to law on the other hand. This is and emulation of the tenor in the judgment in ADM Jabalpur (1976). The majority said in this case that fundamental rights could be suspended during the emergency, with no scope for assessment by the court. Unfortunately, the Kerala verdict revives the ghost of ADM Jabalpur. Consider what the judgments say. The Single Judge said: “From the files produced before the court, it is discernible that the committee of officers took note of the inputs given by the intelligence agencies….” Which “are of serious nature”. These inputs remain unknown. In the judgment of March 2, the Division Bench said: “It is true that the nature, impact, gravity and depth of the issue is not discernible from the files.” Still, the Bench chose to dismiss the appeals by bluntly saying that “there are clear and significant indications impacting the public order and security of the state”. All that is necessary to ban a news broadcaster are these ‘indications’ – which are never revealed to the broadcaster! No recent trend in judicial review has been as opposed to the principles of natural justice as that of the ‘sealed cover’. At the High Court, national security came to mean absolute impunity for the centre. The central government virtually wanted the constitutional court to abstain from its primary function of review of the legality of executive action, and the court did exactly that. The judgment, which accepted this proposition, has the potential to mark the beginning of the end of a free press in a working democracy. When an action is alleged to have curtailed fundamental rights, the court is bound to examine the legality of the action through the lens of proportionality. In Modern Dental College vs State of Madhya Pradesh  (2016), the top court adopted the proportionality test proposed by Aharon  Barak, the former Chief Justice, Supreme Court of Israel, “a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality strict sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right”. This was reiterated in K.S. Puttaswamy vs Union of India (2017). But this entire process of proportionality analysis is sidelined by the High Court. For the top court to resolves Yet, the MediaOne case might create a real problem area that needs resolution by the Supreme Court. The High Court relied on the Supreme Court judgment in Digi Cable Network vs Union of India (2019). In Digi Cable, the Court reiterated the principle in an earlier judgment called Ex-armymen’s Protection Services Private Ltd. (2014). The High Court reiterated what the top court said in Digi Cable: “In a situation of national security, a party cannot insist for the strict observance of the principles of natural justice”. There are two issues here. First, there was no examination of the national security plea based on the proportionality analysis, well established in our recent jurisprudence. Second, when a three-judge Bench in the Pegasus case (Manohar Lal Sharma vs Union of India, 2021) has categorically held that the state does not get a “free pass every time the spectre of ‘national security’ is raised” and that “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning”. In view of this subsequent law laid down by a larger Bench, the High Court could not have mechanically resorted to the earlier approach in Digi Cable. Therefore, the principle, if any in both Digi Cable and Ex-Armymen, is arguably implicitly overruled in the Pegasus judgment. No court can read and apply a previous judgment as if it is a statute. But this is what the Kerala High Court did, while relying on Digi Cable. A deterioration Today, we have a state that has succeeded in suppressing the voice of the dissenter, illegally and clandestinely. The current case will have an impact on any kind of dissent against an aggrandizing regime, including political movements and academic criticism. A court that sits as a mute spectator to any executive action is a crude manifestation of democratic decay. Justice Jackson of the U.S. Supreme Court famously said; “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard” (West Virginia State Board of Education vs Barnette et. Al, 1943). Constitutional courts are expected to eradicate such possibilities instead of perpetuating them.     Working women too, with a dream of good childcare More than 95% of India’s working women are informal workers, but they lack affordable services and maternity benefits NEETHI P., ANTARA RAI CHOWDHAURY & DIVYA RAVINDRANATH The theme for International Women’s Day 2022 (March 8) is ‘gender equality today for a sustainable tomorrow’. However, gender equality is still a far cry for India’s female informal work-force. According to a 2018 study by the International Labor Organization (ILO), more than 95% of India’s working women are informal workers who work in labor-intensive, low-paying, highly precarious jobs/conditions, and with no social protection. A World Health Organization bulletin says that “woman’s informal work is central to the feminization of poverty”. However, we know little about how informal work affects maternal, neonatal, and child health, with the lack of childcare solutions being a serious concern. India is ahead of many advanced nations in instituting maternal health benefits, and its statutory maternity leave is among the global to three. The Maternity Benefit (Amendment) Act, 2017 more than doubled the duration of paid maternity leave for women employees to 26 weeks, proposing an option to work from home after this period, on mutual agreement with the employer, and made crèche facilities mandatory for establishments employing 50 or more women. However, these benefits are mostly enjoyed by formal sector women workers, constituting less than 5% of the women workforce. Another ILO study, in 2016, pointed out that a lack of access to quality childcare services forces women workers to leave the labor force, ceasing their earning, and exposing themselves to discriminatory employment practices, and to significant economic and health risks. India has paid less attention to address concerns around childcare support for informal women workers. Here are three ways to enable women to take up more productive paid work and improve their maternal and child health outcomes: extending the Integrated Child Development Services (ICDS) infrastructure; revitalizing national crèche schemes, and improving maternity benefits. Expansion of the ICDS The primary mandate of the Anganwadi centre’s under the ICDS is to provide maternal and child nutritional security, a clean and safe environment, and early childhood education, thus facilitating the ability of women to re-enter work post-childbirth. However, it has two major limitations. First, it does not cater to children under the age of three. Second, it functions only for a few hours a day, making it inconvenient to send and pick up children during work hours or avail take-home rations provided to pregnant women and households with younger children. Early intake of children in the Anganwadi centre’s can have dual benefits – allow mothers time for paid work and converge with the National Education Policy 2020 mandate that acknowledges quality Early Childhood Care and Education for children in the 0-6 age group. Extending the hours of Anganwadi centre’s can also address time constraints for working women. However, these expansions would also require expanding the care worker infrastructure, especially the Anganwadi worker and helper, who are already overburdened and underpaid. Revitalize the crèche scheme The National Crèche Scheme lays out specific provisions for working women but has suffered diminished government funding. An inclusive approach is required to diversify worksite and working hours and overcome implementation gaps. Revitalizing the provisions of the scheme and adding a network of public and workplace crèches can be hugely beneficial. Public crèches can be operated at worksite clusters such as near industrial areas, markets, dense low-income residential areas, and labor nakas. Crèches closer to the workplace allow for timely breast-feeding and attending to emergencies. This model has been tested successfully by Self-Employed Women’s Association (SEWA) Sangini in some India cities. Where work occurs at a single site, such as a garment factory or construction site, worksite crèches will help; as seen in the construction site crèches run by Aajeevika Bureau (Ahmadabad) and Mobile Crèches (Delhi). The construction sector is a case in point where the Building and other Construction Workers Welfare Board mandates the running of crèches. The funds collected under the construction cess can be earmarked for running crèches at construction sites. Some benefits Childbirth and childcare are financially stressful and compel many women to return to work within a few weeks of childbirth. Women in informal employment did not have maternity benefits until the National Food Security Act (NFS), 2013, entitled pregnant and lactating mothers to a cash transfer of at least 6,000 rupees. However, the scheme notified for this purpose, the Pradhan Mantri Matru vandana Yojana (PMMVY) limits the benefit to the first birth and has also reduced the amount to 5,000 rupees. States such as Tamil Nadu (Dr. Muthulakshmi Maternity Benefit Scheme), Rajasthan (Indira Gandhi Maternity Nutrition Scheme), Odisha (Mamta Scheme), Gujarat (Kasturba Poshan Sahay Yojana), and Chhattisgarh (Kaushalya Maternity Scheme) try to bridge the coverage gap, incentivizing health-seeking behaviors. Of these, Tamil Nadu has an expansive and ambitious scheme offering 18,000 rupees in cash and kind for two live births. Right to Food demands that universal and unconditional maternity entitlements of at least six months of the minimum wages for pregnant women and lactating mothers be implemented. The cash transfers under the PMMVY are insufficient, by both evaluations on the ground and the NFSA benchmark, as well as for nutrition needs and wage compensation. The compensation, which is lower than the minimum wages, is inadequate in postponing the mother’s return to work for the first six months. The amount also does not match an inflation-adjusted NFSA benchmark (nearly 9,400 in 2022). The lack of affordable and quality childcare services and maternity benefits increase the burden on informal women workers, aggravating gender and class inequalities. Presently, it is up to individuals and families to find a resolution to this tension of a worker-mother, putting women, girls, and children at a gross disadvantage. It is imperative that we consider affordable and quality childcare infrastructure as an employment-linked benefit and as a public good.