[Editorial # 89] Brinkmanship over a limited dispute : The Hindu

[Following editorial has been published in The Hindu on 29th March 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

The Centre should step forward and bring both Punjab and Haryana, ruled by the BJP and an ally, to the negotiating table to resolve the crisis over the Sutlej-Yamuna Link canal

Contemporary India illustrates the tragic paradox of farmers’ politics: they get divided just when they need to unite the most. The last few years have witnessed a deepening of the agrarian crisis in India. This is the moment when all agrarian classes need to come together. Instead, we have witnessed in recent times several attempts to pit one section of the peasantry against the other: communal riots in Muzaffarnagar, Uttar Pradesh, the Gujjar-Meena caste clashes in Rajasthan and the recent Jat and non-Jat divide in Haryana. It may not be a simple case of “divide and rule”, but someone does stand to gain by keeping farmers divided.

The latest episode in this unfolding tragedy is the Punjab-Haryana dispute over the Sutlej-Yamuna Link (SYL) canal. The unpopular governments of Punjab and Haryana and discredited politicians on both sides are suddenly back in the reckoning. This must be seen as the new business model of politics: how to turn a small and resolvable dispute into an impossibly large tangle, and then use brinkmanship to milk the situation for maximum political gains.

Playing the water card

The “SYL dispute” has exposed the weakness of the entire edifice of constitutional governance in our country — elected governments, constitutional authorities, political parties, autonomous bodies and even the judiciary.

The Parkash Singh Badal-led government in Punjab is arguably the State government most despised by its own people across the country. Facing an electoral rout, the ruling Akali Dal has played the water card again to distract voters from growing anger against its mis-governance. And it seems to have succeeded, at least for the time being. It managed to get the entire political establishment to first back a law — the Punjab Sutlej-Yamuna Link Canal Land (Transfer of Property Rights) Bill, 2016 — de-notifying the land taken for purposes of building the canal. The Supreme Court frowned at attempts to fill the half-built canal with earth even before the law could be signed. The Punjab Assembly retaliated on March 18 by passing a most unusual resolution that in effect declared that it would not let the canal be built, no matter what the Supreme Court orders in this regard.

The Haryana government, that faced a crisis of legitimacy on account of its failure to protect life and property during the recent agitation over reservation, has suddenly found an opportunity to present itself as the guardian of farmers in distress. Successive State governments that did little to take the available water to the arid region in south Haryana can now present Punjab as the main culprit.

A web of deceit

The Central government has been neither fair nor firm in its role as arbiter and facilitator in this dispute. Initially, Indira Gandhi’s government was partisan. Ever since the advent of militancy in the 1980s, successive Central governments have ducked the issue and shirked their constitutional responsibility. Delaying tactics were used to put the Eradi Tribunal into cold storage. When the Congress government in Punjab passed a law — the Punjab Termination of Agreements Act, 2004 — that unilaterally terminated earlier agreements, the United Progressive Alliance government meekly referred it to the Supreme Court and left it at that. Both instances do not make the judiciary look too good either. It is intriguing that the Supreme Court did not take up a Presidential Reference for well over a decade and has now started hearing the case in an election year in Punjab.

The worst example of hypocrisy was practised by political parties. No party in Punjab had the guts to call the Akali Dal’s bluff. The national parties just gave up the pretence of being national. The Bharatiya Janata Party (BJP) leader in Punjab proposed the provocative resolution to the Assembly; the BJP government in Haryana called it unconstitutional. The Congress in Punjab backed the Akali Dal in its antics, while its leaders in Haryana staged a protest outside the Punjab Assembly. The Aam Aadmi Party was of course different. Here, the same leader spoke in different voices. Arvind Kejriwal declared in Punjab that he was against SYL since the State had no water to spare. Back in Delhi, he was for fair share to every State and warned against playing politics with water! Is there a way out of this web of propaganda, deceit and hypocrisy? I believe this is a limited and resolvable dispute provided we agree on some basics.

Water use and requirement

First, we must acknowledge that water is a real issue for all the States. The farmers of Punjab have a genuine concern. Their agriculture has come to be largely dependent on canal irrigation. The prospect of a reduction in water for irrigation is cause for concern, especially in the Malwa region. Similarly, we must acknowledge that farmers in Haryana and Rajasthan have legitimate needs. The Green Revolution patch in north Rajasthan is entirely dependent on water from the Ravi-Beas. Agriculture in south Haryana continues to be rainfed; parts of this region face a drinking water crisis.

We must also acknowledge that the water requirement is overstated by all parties to the dispute. What is stated as “need” is not the minimum requirement for growing crops suited for this agro-climatic zone, but for water-intensive crops unknown to this region. Ecologists have long been warning us about unsustainable water-use practices in this region.

Second, we must recognise that both Punjab and Haryana have a legitimate grievance. Punjab feels, rightly so, that the Indira Gandhi government’s Ravi-Beas settlement of 1976 was unjust. The people also feel that the shares agreed to by the Chief Ministers of Haryana, Punjab and Rajasthan in 1981 did not fully reverse this injustice. The farmers in Haryana feel that whatever was agreed to on paper has been denied to them in practice. Protracted cases, interminable tribunals and, finally, a blunt refusal to implement any settlement have denied them of their due share.

Third, we must note that this sense of grievance and mistrust has led leaders on both sides to inflate the quantum of difference. In the heat of the dispute we forget that there is no dispute about the use of Sutlej waters. There is a real but fairly delimited dispute about water from the Ravi-Beas. It was agreed upon right from the beginning that the pre-existing usage of water by Punjab and Rajasthan (2.3 and 1.1 MAF [million acre-feet], respectively) would not be touched. The dispute is about the quantum of extra water available for distribution and about the share of the respective States. The most conservative estimate of available water was 15.9 MAF in the 1955 agreement. The most generous, and latest, estimate is 18.3 MAF in the Eradi Tribunal report of 1987. The difference in the share allotted to Punjab is fairly limited: the most unfavourable award of 1976 gave Punjab 22 per cent, which was revised to 25 per cent in the Chief Ministers’ agreement of 1981 and further revised to 28 per cent in the first report of the Eradi Tribunal. There are differences here, but we are not looking at impossible differences.

Finally, there are settled legal principles and institutions to resolve a dispute like this one. As a riparian State, Punjab has first right to use river water, but Punjab, or for that matter any other State, does not own the water that flows through its territory. It was the India-Pakistan Indus Water Treaty (IWT) of 1960 that gave India the exclusive right to use the entire waters of the Sutlej, the Ravi and the Beas. Haryana was a part of Punjab and was thus a riparian State when the IWT took place. The division of the State in 1966 does not take away that status. India got the share of river water that it did in the IWT because it successfully claimed water for canal irrigation projects in the desert area of Rajasthan. So, Haryana and Rajasthan have justified claims accepted by the Supreme Court and the Eradi Tribunal.

Let us also agree that no State government can unilaterally abrogate all the agreements, good or bad, which its lawful predecessors had entered into. And no one can refuse to obey the orders of the highest court of this land. Such actions are plainly unconstitutional.

For a political resolution

How do we go ahead? The resolution should ideally take a political route. Leaders and parties from Punjab must step back from the extra-constitutional path of unilateral action and instead negotiate on the share of Ravi-Beas water. Leaders from Haryana must step back from their demands of a share of water; instead, they should focus on swift and assured implementation of whatever is agreed upon. The Centre should step forward and bring both States, ruled by the BJP and an ally, to the negotiating table. The Prime Minister must work towards a a fair settlement.

Alternatively, the resolution could take a legal route. Let the Supreme Court quickly dispose of the Presidential Reference. If the court finds the 2004 Act unconstitutional, it must take up the contempt petition against Punjab for violating its orders on completing the SYL canal by 2003. Let the court also take a view on the latest Bill of the Punjab Assembly and the filling up of the SYL canal. Finally, let the vacancy in the Ravi-Beas Tribunal be filled and let it submit its final report, which shall be binding on all parties. There is no reason why all of this cannot be completed within a year from now.

Of late, there has been loud talk about nationalism. A true measure of nationalism may not be the height of a flag mast. The real test of nationalism or otherwise of our leadership is in the will and wisdom that it demonstrates in resolving a dispute like this one.

Questions

1  What are other major water disputes between different states of India?

2. What are the main rivers of Haryana and Punjab?

3. What is meant by irrigation? What are major methods of irrigation in India ?

4. What are the provisions of Indus water treaty?

5. What are the challenges being faced by the farmers of Punjab? 

6. Mention an international treaty of water sharing by India other than IWT?

7. What is article 262?

[Editorial # 87] Be bold in revisiting the sedition law : The Hindu

[Following editorial has been published in The Hindu on 18th March 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

The government’s admission in Parliament that the present definition of ‘sedition’ in the Indian Penal Code is too wide and requires reconsideration, is the first indication that the fallout of the Kanhaiya Kumar episode has had a chastening effect on the ruling party. There seems to be a realisation that invoking the draconian penal provision against students of the Jawaharlal Nehru University was an act of overreach by the Delhi Police. Further, legal luminaries had pointed out that the essential ingredient of sedition — an imminent threat to public order — was absent in the case. Opinion is growing that the relevant provision, Section 124-A, has no place on the statute book. While Union Home Minister Rajnath Singh assured Opposition members that an all-party meeting on the issue would be convened after the Law Commission submitted its report on the matter, Minister of State for Home Kiren Rijiju made a pointed reference to concerns that the definition of ‘sedition’ was very wide. He also sought to clarify that he was not discussing the merits of the case against JNU students or defending the action of the Delhi Police, indicating a significant political climbdown. In other remarks, Mr. Rijiju recalled that the Law Commission in its 42nd Report had rejected the idea of repealing the section altogether. A look at the 1971 report shows that in fact it wanted to expand the term relating to exciting “disaffection towards the government established by law” to cover disaffection towards the Constitution, Parliament, the government and legislatures of the States, and the administration of justice.

In penal law, vague and ‘over-broad’ definitions of offences often result in mindless prosecutions based merely on the wording of the act that seems to allow both provocative and innocuous speeches to be treated as equally criminal. While upholding sedition as an offence that fell under the ‘public order’ restriction on free speech, the Supreme Court ruled that it ought to be invoked only if a particular speech or action had a “pernicious tendency to create public disorder”. Words such as “excites or attempts to excite disaffection” or “brings into or attempts to bring into hatred or contempt” are unacceptably vague, and the further explanation that ‘disaffection’ includes “disloyalty and all feelings of enmity” compounds the problem. The provision in effect appears to demand ‘affection’ towards the government, except for a general exception allowing disapproval of governmental measures. Two High Courts had declared Section 124-A unconstitutional before the Supreme Court upheld the section in 1962 in Kedar Nath Singh v. State of Bihar. The Law Commission, while revisiting the issue, should take into account recent developments, especially the flagrant instances of misuse of the sedition law and the tendency to invoke it against those involved in strident forms of political dissent and scathing criticism of governments. One way to limit its mischief is to narrow the definition; but a more rational and constitutional option would be to scrap the provision altogether.

Questions:

1. What is Indian Penal Code? When was it codified? 

2. Section-124 A of IPC has been associated with India's freedom struggle. Find out how.

3. Why is it being said that the definition of "Sedition" is too wide under IPC?

4. What is a Law Commission? Who all are the members of this Commission? What are the various roles of this commission?

5. What are various verdicts given by High Courts and the Supreme Court with regards to sedition?

6. Edmund Burke once said "Bad laws are the worst sort of tyranny"? Comment on this statement giving examples from Indian judicial system.

[Editorial # 56] Hope floats again on Section 377 : The Hindu

[Following editorial has been published in The Hindu on 3rd February 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

Section 377 of the Indian Penal Code, which criminalises gay sex, reflects only medieval prejudice. A lost opportunity to invalidate it has been dramatically resurrected. Two years ago, the Supreme Court declined to review its retrograde decision of 2013 upholding the validity of Section 377. By rejecting the review petition, the court then failed to make use of an opportunity to revisit the contentious Suresh Kumar Koushal verdict and bring the law in line with its own vision of fundamental rights, especially the idea that equality and dignity cannot be denied to any section. The court has now paved the way for a comprehensive hearing on how to protect the dignity and rights of individuals with alternative sexual orientation by referring the matter to a five-judge Constitution Bench. The Chief Justice has noted that the case involves questions with constitutional dimensions. The court has indicated that the larger Bench could traverse beyond the limits of a curative petition, which is essentially a limited, additional remedy to aggrieved litigants after the Supreme Court’s final verdict and the rejection of a review. There is new hope that the Delhi High Court judgment of 2009, reading down Section 377 to restrict its criminal import to non-consensual sexual acts involving adults and all sexual acts inflicted on minors, may be restored.

The latest challenge to its continuance on the statute book comes in a fresh context where the intervening years have seen considerable legal progress in the jurisprudence of sexual orientation and gender identity. In April 2014, while recognising the transgender community as a third gender entitled to the same rights and constitutional protection as other citizens, a Bench of the Supreme Court subtly recorded its criticism of Koushal. Departing from the Koushal formulation that there was no evidence that Section 377 was an instrument of harassment, the Bench had highlighted the misuse of the provision as one of the principal forms of discrimination against the transgender community. Further, it observed that “even though insignificant in numbers”, transgenders were entitled to human rights. That was obviously a rebuttal of the earlier Bench’s claim that those affected by Section 377 were only a “minuscule fraction of the population”, as though the relative smallness of a group’s size disentitled it from constitutional protection. On the global front, the United States Supreme Court held last year that the gay community was entitled to due process and equal protection in the matter of marriage, thus allowing same-sex marriages. In view of these developments, the time has come for an honest judicial evaluation of where India stands on the issue of homosexuality. Some may argue that it is up to the legislature to remedy the situation. In the backdrop of a provision that continues to have criminal and public health consequences for a section of society, the court has a duty to enforce their fundamental rights rather than wait for the political class to come up with a legislative remedy.

Questions:

1. Explain the following terms:

Review petition

Curative petition

2. Write a short note on Sec 377 of Indian Penal Code.

3. What is Indian Penal Code? When was it codified?

4. Why is the current case being referred to a larger bench? Mention a few instances from the past when similar such referrals have been made.

5. What are the various stands taken by different countries on homosexuality?

6. What are the various arguments given in favour of and against homosexuality in terms of its acceptability in Indian society?

7. Comment on the social conditions when IPC Sec 377 was enacted and its relevance in modern day Indian society.

8. Do you think Parliament has failed to protect the rights of LGBT community and the highest judiciary is well within its Constitutional mandates to protect their rights? Explain with examples how the Indian judiciary has played a role in bridging the legislative gaps left by the Parliament.

[Editorial # 55] Towards a law on euthanasia : The Hindu

[Following editorial has been published in The Hindu on 2nd February 2016. Read through it and try to answer the questions that follow. Please do not copy and paste answers. The objective of this exercise is to get you in the groove of answer-writing. Try to write in your own words. Don't hesitate to write in a bulleted-format, if you are uncomfortable in writing in paragraph form.]

The time for legislation to deal with euthanasia has come. The Union government has now informed a Constitution Bench of the Supreme Court that its experts are examining a draft Bill proposed by the Law Commission in its 241st report. However, it has been advised by the Law Ministry to hold back its enactment now, as the matter is pending before the court. Over a decade ago, the government felt that legislation on euthanasia would amount to doctors violating the Hippocratic Oath and that they should not yield to a patient’s “fleeting desire out of transient depression” to die. The government’s latest stand represents forward movement in the quest for a legislative framework to deal with the question whether patients who are terminally ill and possibly beyond the scope of medical revival can be allowed to die with dignity. The question was raised with a great deal of passion in the case of Aruna Shanbaug, a nurse who lay in a vegetative state in a Mumbai hospital between 1973 and 2015. In a landmark 2011 verdict that was notable for its progressive, humane and sensitive treatment of the complex interplay of individual dignity and social ethics, the Supreme Court laid down a broad legal framework. It ruled out any backing for active euthanasia, or the taking of a specific step such as injecting the patient with a lethal substance, to put an end to a patient’s suffering, as that would be clearly illegal. It allowed ‘passive euthanasia’, or the withdrawal of life support, subject to safeguards and fair procedure. It made it mandatory that every instance should get the approval of a High Court Bench, based on consultation with a panel of medical experts.

The question now before a Constitution Bench on a petition by the NGO Common Cause is whether the right to live with dignity under Article 21 includes the right to die with dignity, and whether it is time to allow ‘living wills’, or written authorisations containing instructions given by persons in a healthy state of mind to doctors that they need not be put on life-support systems or ventilators in the event of their going into a persistent vegetative state or state of terminal illness. The government’s reply shows that the Directorate-General of Health Services has proposed legislation based on the recommendations of an Experts’ Committee. The experts have not agreed to active euthanasia because of its potential for misuse and have proposed changes to a draft Bill suggested by the Law Commission. However, there seems to be no support for the idea of a ‘living will’, as the draft says any such document will be ‘void’ and not binding on any medical practitioner. It is logical that it should be so, as the law will be designed specifically to deal with patients not competent to decide for themselves because of their medical condition. This has to be tested against the argument that giving those likely to drift into terminal illness an advance opportunity to make an informed choice will help them avoid “cruel and unwanted treatment” to prolong their lifespan. To resolve this conflict between pain and death, the sooner that a comprehensive law on the subject is enacted, the better it will be for society.

Questions:

1. What is meant by Euthanasia? What is its history? 

2. What are its various types of Euthanasia? 

3. Is Euthanasia legal in India? Which countries in the world have legalised it?

4. What is a Constitutional Bench of Supreme Court? For what reasons is such a bench constituted? Explain with examples.

5. What is Law Commission? How is it constituted? Is it a Constitutional body?

6. What are the ethical concerns related to Euthanasia? 

7. What are the various pros and cons of legalising Euthanasia? 

8. What is an NGO? Under which law/s NGOs are formed? What are the roles of NGOs? Give examples.

9. Do you think Euthanasia falls under the ambit of Art 21 of the Constitution of India? Justify.