THE HINDU EDITORIAL – MAY 9, 2022
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Third and final round Proposed Constitution Bench hearing should end the wrangling over
NCTs 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 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 t 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. One more year 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 maximize 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 eying a swansong, it would be difficult to stretch every
sinew in the next year too. Runner Jinson Johnson, gold medalist 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. Turning down the volume on a call to prayer The winds of
change that have started from Saudi Arabia may just be embracing Indian Islam ZIYA US SALAM A few days after Ram Navami and Hanuman Jayanti celebrations and a
little before Jammatul Alvida (last Friday of Ramzan), the Yogi Adityanath
government in Uttar Pradesh swung into action. Quoting a judgment of the
Allahabad High Court, in Motilal Yadav vs The State of Uttar Pradesh, the
government, in an even-anded manner, removed around 10,900 loudspeakers from
various places of worship, with the initial focus being on the chief
Minister’s constituency (Gorakhpur), the Prime Minister’s constituency
(Varanasi), besides Lucknow and Allahabad.
The early reports revealed that most places of worship, mosques and
temples, were flouting the court order and using loudspeakers wither without
legal permission or above the prescribed decibel level. Within a couple of
days, the campaign extended to towns in western Uttar Pradesh – Agra, Meerut,
Ghaziabad, Muzaffarnagar, etc. In Agra, 756 loudspeakers were removed from
various places of worship. At one go, around 90% of mosques and 85% of
temples were found to be at fault. A surprising response The government action was met with a
considerably mature response. There were no threats to hit the roads or
approach the Supreme Court. There were no calls for rallies or even whispers
of discrimination or appeasement. The lack of opposition from religious
leaders and clerics surprised many. Maybe the images of destruction in the
wake of bulldozer visits in neighboring Delhi and Madhya Pradesh had had an
effect. While the response from some Hindu priests was muted, the Muslim community
was divided in its response.
For the past few years there has been a silent churning within the
community on certain key issues such as the use of loudspeakers for ‘azaan’
(prayer call), use of public roads for Friday prayers, etc. A section has
been volubly in favour of perpetuation of these concessions in a pluralist
democracy, pointing to similar prayers and celebrations of other communities.
That section involved in constant one-upmanship with the majority community
is, however, fast losing numbers. A significant section has been on an
introspective mode, preferring to do the right thing by law and religion. It
is this section which found fairness with the government’s decision to ban or
limit the loudspeaker usage in places of worship of all religions or
curtailing public space for prayers. Drawing from the traditions of the
Prophet, they reiterate that it is incumbent on the community to follow the
law of the land, and one’s action should not discomfit others. Then and now The largely educated section, aware of
the tenets of faith too, points out that at one time, the use of loudspeakers
could be understood or allowed, as back in the 1960s and the 1970s, there
were severely limited ways of communication. Mobiles were nowhere on the
horizon; landline phones were rare and many houses did not even have a clock.
One had to book an HMT wrist watch for weeks in advance. There were instances
where a passer-by or neighbour dropped in just to ask the time. In Ramzan,
the believers were often woken up by wandering mendicants, singing hymns and
knocking at each door to remind them of time for suhoor (predawn)
meal. However, those challenges ended many decades ago. In the age of
Internet, mobiles and Islamic Apps on phones, it is no longer necessary for a
muezzin to blare out the prayer invitation five times a day on a loudspeaker.
In fact, many regular worshippers download Apps on their mobile which remind
them of prayer time with ‘azaan’.
Interestingly, the ‘azaan’ on loudspeakers has often divided the
community. Back in the 1960s and 1970s, the supporters of the Tablighi
Jamaat, then beginning to have an international following, opposed the use of
loudspeakers for the purpose of inviting the faithful to prayers. The largest
Muslim organisation pointed out that the Prophet preferred the use of a high
mound or hill for a person to climb and give out the prayer call. It may be
recalled that back in the seventh century, shortly after Muslims had reached
Medina from Mecca, the Prophet had to devise a way of inviting people to the
mosque five times a day. Some of his companions suggested a bell could be
rung to invite people for prayers. Others suggested a could be blown. A few
others wanted a fire to be lit atop a hill as a mark of prayer time.
The Prophet turned down the suggestions as they were either being
followed by Christians and jews or were considered impractical. Finally, he
asked Bilal, a Black manumitted slave, to learn the words suggested by
Abdullah Ibn Zaid, a companion. Beginning with ‘Allah-u-akbar’, the worlds
together gave the complete text of the prayer call which Bilal was asked to
pronounce from the top of the hill. In a strong statement for egalitarianism,
the first ‘azaan’ was thus pronounced by a Black man without the sound of a
drum or any other instrument or aid. This idea of the Prophet to call people
from a height later led to the construction of tall minarets in mosques over
the next many centuries. To this day, most medieval mosques in India,
including the Jama Masjid in Delhi, have tall and robust minarets which a
muezzin is supposed to climb to give the prayer call. It is this tradition
which the Tablighi Jamaat wanted to maintain. Competing calls Much of it, however, changed from the
1970s, and by 1990s, mosques in Muslim neighborhoods were seen to be
competing in a game of higher volume for their respective ‘azaans’. Spurred
on partly by the Babri Masjid-Janmabhoomi Movement from the late 1980s, many
mosques made it a status symbol to employ multiple loudspeakers pointing at different
directions for the sound to travel all across. Many temples, incidentally,
did the same, some even using loudspeakers for Prabhat pheris at dawn. In old
cities of Hyderabad, Ahmedabad, Lucknow and Delhi with a sizeable Muslim
population, it become almost impossible to respond to a solitary ‘azaan’ in
peace as multiple mosques issued the same invitation at the same time,
leading to more cacophony than spiritual rejuvenation. It is this noise,
particularly at dawn (Fair) and dusk (Maghrib) time that invited the
attention of environment lovers who pointed out the health hazards due to
increased noise pollution.
Incidentally, the situation is the same in much of the subcontinent.
In Karachi and Lahore in Pakistan mosques use high volume on their
loudspeakers; often one finds more than one ‘azaan’ calls at the same time.
In Bangladesh too, prayer calls are made on loudspeakers. It is not unusual
to hear a prayer call from a mosque in either Pakistan or Bangladesh while
watching a cricket match from either country. Recently, we had the unique
spectacle of Australia cricket captain Pat Cummins tweeting about the experience
of listening to ‘azaan’ n the mountains of northern Pakistan. There is change In Saudi Arabia and Malaysia, however,
the winds of change have started to blow, with the authorities in both
countries limiting the use of loudspeakers in masjids. Back in 2010 in
Malaysia, Islamic authorities had issued a fatwa banning the use of
loudspeakers for reading the Koran before Fair prayers in the morning. In
2015, an advisory was used to discourage the use of loudspeakers for tazkirah
or religious narration.
In the summer of 2021, Saudi
Arabia’s Ministry of Islamic Affairs put out an order for all loudspeakers to
be set at only a third of their maximum volume. The Kingdom permitted the use
of loudspeakers at this volume for extending invitation to prayer and for
Iqamah (second call at the commencement of prayer) and asked mosques not to
use external amplifiers to broadcast their prayers in the neighborhood.
Similarly, the Kingdom asked the faithful not to use loudspeakers when they
recite the Koran in the masjid as it was disrespectful to the book.
The winds of change that started from Saudi Arabia may just be
embracing Indian Islam. India’s judiciary and the slackening cog of trust Departures from
substantive and procedural justice need scrutiny as the fallout could
severely imperil governance VANI S. KULKARNI, VEENA S.KULKARNI & RAGHAV GAIHA Centrality of justice in human lives is summed up in a few words
by the Greek philosopher, Aristotle: “It is in justice that the ordering of
society is centred.” Yet, a vast majority of countries have highly corrupt
judiciaries.
Judicial corruption takes two forms: political interference in the
judicial process by the legislative or executive branch, and bribery. Despite
accumulation of evidence on corrupt practices, the pressure to rule in favour
of political interests remains intense. And for judges who refuse to comply,
political retaliation can be swift and harsh. Bribery can occur throughout
the chain of the judicial process: judges may accept bribes to delay or
accelerate verdicts, accept or deny appeals, or simply to decide a case in a
certain way. Court officials coax bribes for free services; and lawyers
charge additional “fees” to expedite or delay cases. A distinction Our focus here is on the functioning of
and erosion of trust in the lower judiciary comprising high courts, and
district and sessions courts. A distinction between substantive and
procedural justice is helpful. Substantive justice is associated with whether
the statutes, case law and unwritten legal principles are morally justified
(e.g., freedom to pursue any religion), while procedural justice is
associated with fair and impartial decision procedures. Many outdated/
dysfunctional laws or statutes have not been repealed because of the tardiness
of legal reform both at the Union and State government levels. Worse, there
have been blatant violations of constitutional provisions. The Citizenship
(Amendment) Act (December 2019) provides citizenship to – except Muslims –
Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from
Pakistan, Bangladesh and Afghanistan on or before December 31, 2014. But this
flies in the face of secularism and is thus a violation of substantive
justice. A striking example of tortuous delay in the delivery of justice is
the case of Lal Bihari. He was officially declared dead in 1975, struggled to
prove that he was alive (though deceased in the records) and was finally
declared alive in 1994 (Debroy, 2021). Thus, both departures from substantive
and procedural justice need deep scrutiny. Alongside procedural delays,
endemic corruption and mounting shares of under-trial inmates with durations
of three to five years point to stark failures of procedural justice and to
some extent of substantive justice. Under the different regimes All was not well with the lower
judiciary under the United Progressive Alliance regime. According to
Transparency International (TI 2011), 45% of people who had come in contact
with the judiciary between July 2009 and July 2010 had paid a bribe to the
judiciary. The most common reason for paying the bribes was to “speed things
up”. There were “fixed” rates for a quick divorce, bail, and other procedures
(Banerjee, 2012). The Asian Human Rights Commission (AHRC) (April 2013)
estimates that for every 2 rupees in official court fees, at least 1,000
rupees is spent in bribes in bringing a petition to the court.
There is a scarcity of evidence on bribes and malfeasance under the
National Democratic Alliance (NDA). A few broad-brush treatments are,
however, worrying Freedom House’s ‘Freedom in the World 2016 report for India’
states that “the lower levels of the judiciary in particular have been rife
with corruption” (Freedom House 2016). The GAN Business Anti-Corruption
Portal reports that, “[t]here is a high risk of corruption when dealing with
India’s judiciary, especially at the lower court levels. Bribes and irregular
payments are often exchanged in return for favorable court decisions” (GAN
Integrity 2017).
Allegations of corruption against High Court judges abound. For
example, Tis [Tiz] Hazari District Court Senior Civil Judge, Rachna Tiwari
Lakhanpal, was arrested in September 2016 for allegedly accepting a bribe to
rule in favour of a complainant in a case. Such examples are indicative of the
widespread malaise of corruption in the lower judiciary. Worse, there are
glaring examples of anti-Muslim bias, often followed by extra-judicial
killings by the police. Anti-Muslim bias alone may not result in erosion of
trust but if combined with unprovoked and brutal violence against them (e.g.,
lynching of innocent cattle traders) is bound to. Case pendency According to the National Judicial
Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s
district courts, of which 2,317,448 (9.58%) have been pending for over 10
years, and 3,975,717 (16.44%) have been pending for between five and 10
years. As of December 31, 2015, there were 4,432 vacancies in the posts of
[subordinate court] judicial officers, representing about 22% of the
sanctioned strength. In the case of the High Courts, 458 of the 1,079 posts,
representing 42% of the sanctioned strength, were vacant as of June 2016.
Thus, severe backlogging and understaffing persisted, as also archaic and
complex procedures of delivery of justice.
Extreme centralization of power in the Centre and a blatant violation
of democratic values under the NDA have had disastrous consequences in terms
of violent clashes, loss of lives, religious discord, assaults on academic
freedom, and suppression and manipulation of mass media. Exercise of
extra-constitutional authority by the central and State governments,
weakening of accountability mechanisms, widespread corruption in the lower
judiciary and the police, with likely collusion between them, the perverted
beliefs of the latter towards Muslims, other minorities and lower caste
Hindus, a proclivity to deliver instant justice, extra-judicial killings,
filing first information reports against innocent victims of moblynching –
specifically, Muslim cattle traders while the perpetrators of violence are
allowed to get away – have left deep scars on the national psyche. It may
seem farfetched but it is not, as these are unmistakable signs of abject
failure of governance.
Our analysis reinforces this concern. While trust in the judiciary is
positively and significantly related to the share of undertrials for three to
five years under total prisoners, it is negatively and significantly related
to the square of share of under-trials. However, the negative effect nearly
offsets the positive effect. So, while trust in the judiciary marginally
rises with the proportion of undertrials until the threshold (0.267) is
reached, it decreases beyond that point as the proportion of under-trial
inmates rises.
In sum, erosion of trust in the judiciary could severely imperil
governance. |
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