THE HINDU EDITORIAL- MARCH 8, 2022
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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. |
