1. Mediation Bill: Not getting the Act together

While it contains many pluses, the Bill needs improvement in some crucial places

The Bill recognises that mediation has come of age and needs to be treated as a profession, which is a huge improvement over the part-time honorarium basis it had in the court-annexed mediation schemes. 

The governing mechanism, which is the Council, has three members: a retired senior judge, a person with experience of Alternative Dispute Resolution (ADR) law and an academic who has taught ADR. It does not have even one single mediator in the body.

While the government has called for comments on the draft Bill, what is missing is the element of focused and engaged discussion after comments are sent.

Sriram Panchu

The Parliamentary Standing Committee on Law and Justice has recommended substantial changes to the Mediation Bill. The panel has particularly cautioned the Centre against making pre-litigation mediation compulsory. In this article dated December 8, 2021, Sriram Panchu explains the good, the bad and the sad of the much disputed Mediation Bill.

Over the last 15 years, the dispute resolution landscape in India has undergone significant change with the advent of mediation. To house this consensual creature in the same stables as thoroughbreds of adversarial litigation and arbitration was a challenge, and even more to ensure that they got on reasonably well, working in tandem in inventive ways like arbitration-cum-mediation and vice versa.

It seems to be the way of the world that when something becomes prominent, there must be a law to regulate it. And so with mediation. While scattered mention was made of its use in several statutes, including commercial and consumer disputes, there was no comprehensive statute providing for all dimensions of the mediation process and its practice. Such a need was articulated in several quarters, notwithstanding doubters and dissenters who insist that regulation will kill the free spirit that mediation embodies. A group of senior mediators was set up by the Supreme Court Committee in charge of court-annexed mediation process, and over a period of several months, a draft Bill emerged which then started to make its way through the labyrinthine processes of governmental and legislative mandarins. The resultant Bill titled the Draft Mediation Bill 2021, slated for presentation now to Parliament, bears no resemblance to the original in some crucial places. It reminds the mediation community of an old Clint Eastwood film — the Good, the Bad, and the Sad (tweaked).

The good

The Bill recognises that mediation has come of age and needs to be treated as a profession, which is a huge improvement over the part-time honorarium basis it has in the court-annexed mediation schemes. The Bill acknowledges the importance of institutes to train mediators, and service providers to provide structured mediation under their rules. It provides for pre-litigation mediation. This is quite a remarkable step, but is designed to be easy to implement. Parties are required to have at least one substantive session with the mediator where the process is explained to them. Thereafter they are free to continue or terminate the mediation and follow the litigation path if they so decide. Further, if any urgent interim order is needed, they can bypass mediation at the first stage and return to it after resolving the interim relief issue.

Another plus is that the Bill does away with the confusion emanating from using both expressions “mediation” and “conciliation” in different statutes by opting for the former in accordance with international practice, and defining it widely to include the latter. It recognises online dispute resolution, a process that is going to move mediation from the wings to centre stage in a world that COVID-19 has changed. It provides for enforcement of commercial settlements reached in international mediation viz between parties from different countries as per the Singapore Convention on Mediation to which India was a notable signatory. The Convention assures disputants that their mediation settlements will be enforced without much difficulty across the world, unlike the fresh headaches that the litigative decree or arbitration award present at the time of enforcement.

The bad

Leading in from the last point, it is expected that this Bill would make India a hub for international mediation in the commercial disputes field, and indeed institutions are being opened for this purpose. Exactly the reverse may happen. This is because the Bill unwisely treats international mediation when conducted in India as a domestic mediation. The settlement under the latter is given the status of a judgment or decree of a court. Now, that is excellent for cases between Indian parties, but disastrous when one party is foreign. The reason is that the Singapore Convention does not apply to settlements which already have the status of a judgment or decree. Ergo, if you conduct your cross-border mediation in India, you lose out on the tremendous benefits of worldwide enforceability. In sum, go to Singapore or Sri Lanka or anywhere else other than India to conduct your mediation. If this drafting mismatch is not remedied, dreams of our robust hubs and ease of doing business in India are neatly nipped in the bud.

Then comes the governing mechanism, the Council. It has three members: a retired senior judge, a person with experience of Alternative Dispute Resolution (ADR) law and an academic who has taught ADR. This is an all-powerful body which regulates, certifies, accredits, plans, governs, etc., and it doesn’t have a single mediator. Judging from the fact that these are full-time members, it is clear that none of them will be active practitioners. Most likely we are looking at sinecures for the bureaucratic and academic world. Certainly this Bill will be unique where a profession is being regulated without a single professional on the regulator. Try doing that to lawyers, doctors and accountants. And one more lapse — this is the field of dispute resolution, the judiciary’s domain, so how come the Chief Justice of India is not in the picture for making appointments?

Then there is a long list of disputes which should not be mediated. Some of them look understandable at first sight but unnecessary at second. Fraud, for example. It is standard practice in litigation to make as many and as serious charges as possible; that doesn’t prevent parties from settling, and these accusations are disposed of by retraction or apology or simply ignored. In cases involving minors or persons of unsound mind, the law provides for the court to pass orders to protect them. All that is necessary is to provide that any settlement of disputes involving them needs the court’s approval, not to deny the possibility of a beneficial mediated settlement. Patents and copyright cases settle on commercial terms leaving untouched the validity of the grant, so why deny this possibility and consign the parties to litigative longevity? In the case of telecom, why can’t manufacturers and service providers and consumers be allowed to talk and resolve issues?

The sad

Why can’t we get our act together to get the Mediation Bill in good shape? Why can’t all the stakeholders get this Bill together? Mediators, lawyers, judges have applied their minds to a considerable degree. To be fair to the government, it did call for comments on the draft Bill. What is missing is the element of focused and engaged discussion after comments are sent. It is as though a wall has been erected and no one knows what is going to emerge. We all have a common purpose: to place mediation strongly in our legal landscape, and place India prominently in the world’s mediation landscape. Even if it takes more discussion and consideration amongst all stakeholders, let that be done. It is for Parliament now to do the needful. We should not settle for less.

2. Centre has no new data on child labour

The numbers drought arose after the NCLP was merged with the Samagra Shiksha Abhiyan in 2016

The Centre does not have any data on child labour in the country and a reason for this is the drying up of budgetary provisions meant for the National Child Labour Project (NCLP), which had been monitoring the issue for about three decades.

The Labour Ministry is learnt to have told the Parliament Standing Committee on Labour, headed by veteran Biju Janata Dal (BJD) MP Bhartruhari Mahtab, that since the NCLP was merged with the Samagra Shiksha Abhiyan in 2016, the Ministry has no records of child labour. The currently available data is of the 2011 Census, which says the country has more than a million child labourers.

Last year, the panel had pulled up the Centre for lack of data on migrant workers.

Searching for proper data on child labour, the Standing Committee reached out to 14 Union Ministries and Departments, including the Home Ministry, Women and Child Development Ministry and several States.

“Almost all the Ministries have told us that they do not have any data. The Labour Ministry says that we may have to wait till the next census to make an assessment of the number. The NCLP’s schools for child labourers work for three to four years and they have also more or less stopped functioning due to scarcity of funds. Education Ministry also does not have a mechanism to find out the number of children engaged in child labour. This is a serious situation,” a senior member in the panel said. It is for the first time that a parliamentary panel is engaged in a detailed examination of the national policy on child labour. The member said though we have legislation, the Child Labour (Prohibition and Regulation) Act, since 1986 the menace of child labour is continue unchecked.

“We have received some empirical reports by certain NGOs that child labour has increased after the pandemic. We are specifically looking into this issue. It means, children are more vulnerable now and lack of data will hamper any efforts to help them,” the member said.

On Tuesday, NGOs such as Bachpan Bachao Andolan, Aide et Action, Childline India Foundation, Prayas Juvenile Aid Centre, Save the Children and SOS Children Villages appeared before the panel on the issue.

“The NGOs also do not have any proper assessment of the number of children in labour. The Home Ministry had earlier made a detailed presentation on issues such as child trafficking, but they also do not track if any children are employed in work places,” another member said.

On Wednesday, the governments of Delhi, Rajasthan, Punjab, Madhya Pradesh, Odisha, Assam, Jharkhand and Tamil Nadu will brief the panel about the situation in their States.

Child Labour

• Child Labour refers to the exploitation of children for any form of work that would deprive them of gaining equal access to education and a normal childhood.
• This results in the victimized child being used mostly for physically, socially and mentally harmful work.
• India currently is home to more than 10 million child labourers, despite the various legislations and efforts taken in this direction by the Indian Government.
• The elimination of child labour is essential to achieve the set developmental goals of the government by 2030.

Government Laws against Child Labour

• The government has laid down multiple rules governing the enforcement of child labour and is taking active measures to eradicate this practice.
• Gurupadswamy Committee, in1979, was a statutory committee formed by the Central Government of India, which found that the inextricable reason behind child labor in India was linked directly to Poverty. The committee’s findings and analysis were then utilized to enact the Child Labour (Prohibition & Regulation) Act, 1986 by the union government. 
• Child Labour (Prohibition & Regulation) Amendment Act, of 2016 is an amendment of the Child Labour (Prohibition & Regulation) Act, 1986 which has placed a complete prohibition on the employment of underage children, especially in hazardous situations or occupations. It has also interconnected the prohibition of employment with access to free education as per the Right to Education Act of 2009.
• India was the 170th member of the International Labour Organisation (ILO) to agree with Convention No. 138. This convention requires member parties to set a minimum age under which no person should be employed. India also agreed with Convention No. 182, which requires state parties to eliminate and prohibit any forms of extreme child labour activities such as trafficking, use of children in armed conflict, prostitution and in illicit activities.
• INDUS Project: Government of India and the US Department of Labour had jointly collaborated to form the INDUS Project, which aimed at preventing and eliminating child labourers, especially from hazardous occupations. It was developed under ILO-IPEC (International Labour Organization- International Programme on the Elimination of Child Labour).
• National Child Labour Project (NCLP) Scheme: This is a scheme by the central government of India to facilitate rehabilitation of child labourers and to aid their introduction to formal education with vocational training at NCLP Centres. 

National Child Labour Project (NCLP) Scheme

It is a Central Government Scheme which has been devised to tackle the issue of child labor is a more effective manner by focussing on specific target ideas, identifying the victims, withdrawing them from hazardous situations, focussing on their rehabilitation and meanwhile spreading awareness on the functionalities of NCLP and the other agencies on child labour to the families of the child labourers. 

Objectives of NCLP:

• It aims at the expulsion of child labour in all forms possible through a sequential basis of:

• Identification of children in child labour in the project area.
• Withdrawing the identified children.
• Preparation of the withdrawn children for introduction to mainstream education by providing necessary vocational training.
• Ensuring that they’re benefitted by the multitude of services provided by the different governments and agencies.
• It aims at the withdrawal of adolescent children from hazardous situations or occupations by
  • Identifying all adolescents and withdrawing them from the project area.
  • Facilitating training programmes for such adolescents through the skill development schemes, which are currently existing.
• It aims at raising awareness amongst the target communities and the other stakeholders regarding child labour about the functionality of NCLP.
• To create a Child Labour Monitoring, Tracking and Reporting System to stay updated with the situation.

Given below are a few links that are relevant for the upcoming UPSC Civil Services Exam –

NCLP Target Group:

• The scheme focuses on all the child workers below the age of 14 in the target areas, adolescent workers below 18 years of age engaged in hazardous occupations and also on the families of the child workers in that specific target areas.
• The children would be eased into local schools after providing necessary bridging programmes.
• The adolescent children in hazardous work would be given skill enhancement training and shifted to non-hazardous work.
• The delivery of income/stipend, employment or social security to the families of child workers will be ensured by the government. The tracking of the rescued child workers will be done to follow up for evaluation of impact. 
• The child labour laws will be stepped up according to the requirement in the required area.

NCLP Highlights/Features:

• The Government contributes to the identification, classification, eradication, and withdrawal of children and adolescents from hazardous occupations.
• Successfully mainstreaming the rescued children into proper local schools and affiliating them with Sarva Shiksha Abhiyan (SSA).
• The adolescents will be provided with other skill enhancement training and transferred to permitted occupations.
• Better awareness programs for the education of communities and the Indian public as a whole with the help of enhanced abilities.
• Compensatory measures for the families who are releasing their children from working and allowing them to attend training or schools.
• Mothers of such victimized children are often organized into self-help groups (SHG’s).

NCLP Implementation:

• The scheme was successfully implemented through joint collaboration with civil society, state and district administration.
• The responsibility is jointly handed to the respective state governments and the Ministry of Labour and Employment.
• The scheme has been initially launched in areas of high cases of child labour and specific District Project Societies (DPS’s) have been set up at the district level to ensure proper implementation of the scheme at al levels.
• District Project Society is also responsible for the stipend payment for the children and their families.

PENCIL PORTAL

A unique online portal was launched in 2017, by the government, called PENCIL (Platform for Effective Enforcement for No Child Labour). It had been created under the NCLP scheme:

• To ensure effective and easy implementation of the scheme.
• It consists of a Child Tracking System and a Complaint corner.
• The portal can connect the Central Government to respective State Governments, districts, to all project societies and finally to the general public.
• The portal allows anyone to file a complaint regarding child labour.
• The received complaints are automatically assigned to the concerned Nodal officer by the system immediately upon receiving the complaint to take further actions which might be necessary.
• The portal has registered a total of 1010 complaints of which 361 have been updated as resolved by the Nodal officers.

Benefits of NCLP

The total number of children mainstreamed through Special Training Centers set up under the National Child Labour Project (NCLP) Scheme, is 13.63 lakh, since the inception of the scheme.

Major benefits that will accrue through this scheme are –

1. Contribute to the identification and eradication of all forms of child labour;
2. Contribute to the identification and withdrawal of adolescents from hazardous occupations and processes in the target area;
3. Awareness about the ill effects of child labour
4. Successful mainstreaming into regular schools of all children who have been withdrawn from child labour and rehabilitated through the NCLPS
5. Adolescents withdrawn from hazardous occupations /processes to have benefited from skills training wherever required and linked to legally permissible occupations
6. Better informed communities, specific target groups and the public at large as a result of the Social Mobilization Programme
7. Enhanced capacities to address the issue of child labour through training of NCLP staff and other functionaries.

3. NASA telescope dives deep into the universe

James Webb telescope captures images

NASA on Tuesday unveiled images from the James Webb Space Telescope, the largest and most powerful orbital observatory ever launched.

The pictures, designed to peer farther than before with greater clarity to the dawn of the universe, were hailed by NASA as milestone marking a new era of astronomical exploration.

Nearly two decades in the making, the $9 billion infrared telescope was launched on December 25, 2021. It reached its destination in solar orbit nearly 1 million miles from Earth a month later.

The crowning debut image, previewed on Monday by U.S. President Biden at the White House but displayed with greater fanfare on Tuesday, was a “deep field” photo of a distant galaxy cluster, SMACS 0723, revealing the most detailed glimpse of the early universe recorded to date.

Among the other Webb subjects were two enormous clouds of gas and dust blasted into space by stellar explosions to form incubators for new stars — the Carina Nebula and the Southern Ring Nebula, each thousands of light years away from Earth. The collection also included fresh images of another galaxy cluster known as Stephan’s Quintet, first discovered in 1877.

James Webb Space Telescope (JWST)

The James Webb Space Telescope is an infrared observatory launched by an Ariane 5 rocket from Kourou, French Guiana, on December 25, 2021. It is the world’s most powerful ‘telescope’. On 25th January, 2022, the James Webb Space Telescope reached the point referred to as the second Lagrange point (L2) between the Earth and Sun. This point is 15,00,000 kilometres away from the Earth – more than four times as distant as the moon. The telescope is expected to work in this orbit for a decade or two, watching the birth of our universe

Delays and Interruptions

The James Webb Space Telescope was destined to fly in 2007 but much to the scientific community’s disappointment, the launch was delayed. A combination of engineering problems, political hesitancy and project management issues contributed to the delay of the much-awaited launch of the JWST.

For example, U.S. politicians threatened to pull funding for the James Webb Telescope in July 2011. Fortunately, in November 2011, the spacecraft was saved from all harm’s clutches.

Finally, astronomers rejoiced when the telescope was declared to be launched in March 2018. However, much to their frustration, the launch was once again delayed due to technical issues with the spacecraft. These issues were later rectified by the engineers.

In June 2018, an independent review board discussed and declared that the launch could be moved to March 2021, when the circumstances and the telescope were more stable.

The global coronavirus (COVID-19) pandemic in 2020 also impacted the JWST’s progress to make it to space. This led to another delay and NASA announced new launch date in July 2020. The new date for this historical launch was supposed to be October 31st, 2021.

The JWST’s team deserve to be applauded for their perseverance and determination towards the launch of this observatory. They faced difficult times and hardships but nevertheless kept pushing forward. However, the delays and interruptions kept coming.

In June 2021, the team encountered problems with the Ariane 5 launch vehicle. These issues pushed the launch date back to November or possibly early December 2021. In September 2021, NASA and ESA announced yet another delay for the launch. This delay was due to the observatory not being shipped on time. The observatory’s original location was in California and was supposed to be shipped to ESA’s launch site at Kourou in French Guiana. This prompted a new launch date given by the two agencies – December 18, 2021. However, bad weather conditions put a stop to the launch.

Finally, much to everyone’s relief and happiness, the James Webb Space Telescope launched on December 25, 2021, from ESA’s launch site at Kourou. The launch took place at 7:30 a.m. EST (1220 GMT; 9:20 a.m. local time in Kourou), on-board an Ariane 5 rocket.

Controversial Naming of the Telescope

The James Webb Space Telescope was previously known as the Next Generation Telescope. It was renamed the JWST in September 2002.

The JWST is named after former NASA chief James Webb. Webb took charge of the National Aeronautics and Space Administration from 1961 to 1968. He retired just a few months before NASA was able to put the first man on the moon.

The renaming of the telescope was not taken well by many. Online petitions were set up by critics to urge NASA to rename the telescope due to claims that James Webb was complicit in discrimination against LGBQT+ NASA employees during his tenure.

NASA refused to rename the telescope despite the complaints pouring in.

James Webb Space Telescope vs Hubble Space Telescope

The James Webb Space Telescope is often referred to as the successor to the Hubble Space Telescope.

The scientific goals of the JWST were motivated by the results from the Hubble Space Telescope. The two telescopes, however, have different capabilities.

Hubble observed the cosmos in optical and ultraviolet wavelengths with some infrared capabilities. Whereas, the JWST looks at the infrared light in detail and sheds light on some of the oldest stars and galaxies in the universe.

The JWST will orbit the sun whilst Hubble orbits the Earth. JWST will be too far away to be serviced and repaired unlike Hubble which can be accessed and fixed by space shuttle missions.

Mission Goals

NASA has clear cut mission goals for the James Webb Space Telescope. These are:

• Search for the first galaxies or luminous objects formed after the Big Bang;
• Determine how galaxies evolved from their formation until now;
• Observe the formation of stars from the first stages to the formation of planetary systems;
• Measure the physical and chemical properties of planetary systems, including our own Solar System, and investigate the potential for life in those systems.

Mission Milestones

Owing to the successful and precise launch of the James Webb Telescope, NASA announced that the JWST should have enough fuel to more than double its minimum mission life expectancy, which is 10 years.

Accomplishments have been rolling in non-stop since the launch. Good things are sure to come to those who wait!

• The Ariane 5 rocket captured an impressive HD video of the observatory flying away. The video shows Webb drifting and unfurling its solar panels. This will be the last we’ll ever see of the James Webb Space telescope as it does not have any cameras aboard.
• December 26, 2021- The JWST deployed and tested a key antenna in a 1 hour process.
• December 27, 2021- The observatory sailed beyond the orbit of the moon.
• December 31, 2021- The telescope unfurled its sunshield.
• January 3, 2022- The tensioning of the sunshield’s five layers began and was completed the next day.
• January 5, 2022- The secondary mirror was successfully deployed and latched.
• January 8, 2022- NASA announced the telescope had unfolded the giant primary mirror and is fully deployed.
• January 24, 2022- The JWST reached its final destination (L2 – the second Lagrange point) which it will orbit after travelling nearly a million miles. This point is gravitationally stable.

4. Editorial-1: A new judicial device for ‘complete justice’

India’s top court cannot be seen to be helpless when faced with issues of individual liberty

Mohammed Zubair, the co-founder of Alt News, continues to be in prison despite the Supreme Court of India, last Friday, granting him interim bail, because of remand in another case by the Delhi police. The Court was aware of the futility of the bail order. Yet, the Court did not direct his release by granting him bail in the other case too.

The order relates to a case challenging the Allahabad High Court’s judgment refusing to quash the First Information Report (FIR) against Mr. Zubair. The charge was under Section 295A of the Indian Penal Code (IPC) — outraging religious feelings … by insulting religion or religious beliefs. Later, a charge under Section 153-A IPC, of promoting religious enmity, was added.

It was explained to the Court that there was not even a prima facie case against Mr. Zubair. Also, it was shown that the case itself was a device to crush dissent. The political malice behind the charge was very obvious. The Court also seemingly accepted the contentions, as evident from the grant of bail. Yet, the Court said the order was with respect to only the case registered in Uttar Pradesh. This has meant the continued detention of Mr. Zubair.

Challenges before judiciary

The Supreme Court of India is regarded as the world’s most powerful top court, on account of its wide power of judicial review. It has the jurisdiction to issue writs under Article 32 of the Constitution. It also has the original jurisdiction under Article 131 of the Constitution. There is also wide appellate power under Articles 132, 133, 134 and 136 of the Constitution. More significantly, the Supreme Court has the power to “make such order as is necessary for doing complete justice in any cause or matter pending before it”, as per Article 142 of the Constitution. Yet, the top court has shown itself to be helpless when issues of individual liberty have been placed before it on very many occasions. Many political prisoners languish in prison after their bail pleas have been repeatedly rejected by different courts. The executive is able to register multiple FIRs in different States of India so as to ensure that the dissident is not released from prison even if bail is granted in some of the cases. Thus, the jail jurisprudence of the executive effectively surpasses the Court’s bail jurisdiction. Reports say that after the Supreme Court’s order, another warrant was issued against Mr. Zubair by a local court in Lakhimpur Kheri in Uttar Pradesh. This scenario, which reflects the new normal in the country’s criminal jurisprudence, poses crucial challenges to the judiciary.

The Supreme Court cannot afford to be conventional if it really wants to tackle this situation where an aggrandising executive hunts its opponents in a systematic and incremental way. Conventional legal wisdom proclaims that every criminal case is a case which requires to be dealt with as such and taken to its logical conclusion. Even in Mr. Zubair’s case, the contention of the Solicitor General of India was that “any order passed by (the Supreme) Court (in this case) will interdict four judicial orders passed by two courts which have not been challenged”. It is the Court’s inability to overcome this line of argument by invoking the spirit of Article 142 that led to the ironic predicament of Mr. Zubair being in jail, despite the grant of the ‘interim bail’.

The practice of registering multiple FIRs is extremely problematic. In the context of free speech, American legal scholar Professor Vincent Blasi identifies “historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically”. The situation in India is illustrative.

More ‘rule by law’

The criminal justice system in such tough times degenerates into rule by law, that replaces rule of law. The law becomes an effective device in the hands of the Government for the purposes of a witch-hunt and this operates against the opponents of a regime, as a class. In this scenario, if the Court erroneously presumes that the nation’s legal system is governed by the principle of rule of law, fallacies and unjust consequences are bound to occur. In such a legal ambience, it will be equally fallacious to treat each case as isolated, as in reality, it is not so. Climatic changes in a nation’s constitutionalism are a hard reality which no court can ignore.

Even in challenging times, a constitutional court should be able to evolve a mechanism of its own to preserve the democratic foundation of the country by intervening in the incremental process of nation’s “deconstitutionalisation”. Professor of law Rosalind Dixon in a recent study says that “at least under certain conditions — of sufficient independence, political support and remedial power — courts can too play an important role in buttressing democratic processes and commitments”, and this, according to her, “is the essence of responsive judicial review”. The constitutional courts in Colombia and Brazil have developed the new doctrine of “unconstitutional state of affairs”. This enables the court to address structural deficits with a sense of realism and to pass effective orders even by deviating from procedural rigour, with a view to protect fundamental rights. This is, in certain ways, akin to the practice of Public Interest Litigation (PIL) in India and structural injunctions in the United States.

Create a judicial atmosphere

The courts, no doubt, may sometimes subserve the interest of the executive. This may even pose a serious threat to personal liberty, as it happened recently in its observations against activist Teesta Setalvad and former police officer R.B. Sreekumar. But in certain rare situations, it could still act as a determined umpire who checks the executive’s excesses. The Supreme Court’s intervention in the Centre’s COVID-19 vaccine policy and the Pegasus episode illustrates this point. The need is to expand the latter approach and to create and perpetuate a democratic judicial atmosphere that supports the cause of freedom.

At least in principle, the Indian Supreme Court is constitutionally equipped with the power to invoke its jurisdiction for the larger cause of liberty, even by deviating from the conventional technical route. The “complete justice” under Article 142 is meant to be used when the legalistic arguments such as those raised by the state in Mr. Zubair’s case have the effect of sabotaging the goal of constitutional justice. The Court needs a new version of judicial activism, which the Court itself evolved, in the 1980s.

The genesis of Article 142 shows that the makers of the Constitution have consciously incorporated this provision by drastically modifying the earlier corresponding provision in the Government of India Act, 1935. The Government of India Act, by way of Section 210(2), only said about the enforceability of the orders of the Federal Court. It did not, naturally, contain an idea of complete justice in the constitutional sense. Article 142, on the other hand, arms the Supreme Court with this supplemental power.

The interpretation of the scope of this provision has been varied, and sometimes even conflicting. Some judgments pleaded for its restrictive use while some others did for its liberal and contextual application. In Delhi Development Authority vs Skipper Construction Company (1996), the top court said that the power under Article 142 should remain “undefined and uncatalogued, so that it remains elastic enough to be moulded to suit the given situation”.

Treat them as a class

It is essential for the Supreme Court of India to treat political prisoners and dissenters facing multiple FIRs and undergoing unjustifiably long incarceration as a class. It needs jurisprudence at the normative level to tackle the technical arguments that create a false notion of rule of law when the very cause of arrest and detention is the lack of it. When a glaring instance of curtailing a person’s freedom is placed before the top court, it should be capable of calling for the records pertaining to the multiple FIRs and to suo motu add all the stakeholders as parties (if needed); the Court should immediately ensure that vindictive incarceration does not continue even for a day. This might be difficult, yet not impossible. Mr. Zubair’s case is one (like many other cases in the past) that demonstrates the juridical deficits of today’s Supreme Court. It is, therefore, an imperative to evolve an effective jurisprudence of “complete justice” by focusing on personal liberty. It is the praxis of this new judicial device that can, perhaps, preserve the country’s democratic legacy.

5. Editorial-2: Rightful challenge

Twitter case should lead to changes in IT rules that will protect free speech

By moving the Karnataka High Court challenging several blocking orders from the Union government on content posted on its website, Twitter, Inc. has finally decided to take the bull by the horns on the issue of freedom of expression on the online platform. A cynical view will regard this as action done under duress — between February 2, 2021 and February 28, 2022, Twitter was issued directions to block 1,474 accounts and 175 tweets in India, with the Ministry of Electronics and Information Technology suggesting in June that it was giving the company a final opportunity to comply with the directions. But a substantive look at the challenge in the court by the company — 39 URLs in specific in its petition — suggests that Twitter is right to take up the gauntlet. Much of the content in these URLs deemed to be fit for takedowns is either journalistic or of a political nature, or even dissent. For example, some of the tweets were by farmers and others during their agitations against the farm laws. Twitter is also accurate in suggesting that the Government has not complied with rules under the Information Technology (IT) Act which call for a hearing of the author of the content besides the intermediary before any takedown action. The provision of these rules was one of the key reasons why the Supreme Court had upheld the constitutionality of Section 69A of the IT Act (in Shreya Singhal vs Union of India, 2015), which empowers the Government to restrict access to online content in the interest of the sovereignty and integrity of the country, security of the state, friendly relations with foreign states or for public order. It is quite clear that the Union government has used the public order and national security argument in a blanket manner to get Internet platforms such as Twitter to take down content or to seek removal of profiles even if they merely constituted political dissent or were not remotely connected to the reasons proffered by it.

The Internet and telecommunications system has become an even greater behemoth than what it was when the IT Act was framed in 2000. To expand the scope of regulations to the new forms of intermediaries that have cropped up since then, the Government most recently came up with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which, besides bringing about obligations for accountability from social media companies and platforms, went on to add onerous requirements such as traceability of online conversations and new oversight functions that are weighted in the Government’s favour. Twitter’s case in the Karnataka High Court should lead to greater scrutiny of the Rules and to a clear legislative debate on how to remake them in a way that they do not impinge on the right to freedom of expression and privacy in the online space.

6. Editorial-3: The scale of municipal finances is inadequate

Fiscal deficits, constraints in tax base expansion, and weakening of institutional mechanisms are challenges

The health of municipal finances is a critical element of municipal governance which will determine whether India realises her economic and developmental promise. The 74th Constitution Amendment Act was passed in 1992 mandating the setting up and devolution of powers to urban local bodies (ULBs) as the lowest unit of governance in cities and towns. Constitutional provisions were made for ULBs’ fiscal empowerment. However, three decades since, growing fiscal deficits, constraints in tax base expansion, and weakening of institutional mechanisms that enable resource mobilisation remain challenges. Revenue losses after implementation of the Goods and Services Tax (GST) and the pandemic have exacerbated the situation.

Comprehensive data sets on municipal finance are important to understand and counter these challenges, but few exist at the city level. Recently, the Indian Institute for Human Settlements (IIHS) analysed data from 80 ULBs across 24 States between 2012-13 and 2016-17 to understand ULB finance and spending, and found some key trends.

Share of own revenue

The first is that ULBs’ own sources of revenue were less than half of their total revenue, with large untapped potential. The ULBs’ key revenue sources are taxes, fees, fines and charges, and transfers from Central and State governments, which are known as inter-governmental transfers (IGTs). The share of own revenue (including revenue from taxes on property and advertisements, and non-tax revenue from user charges and fees from building permissions and trade licencing) to total revenue is an important indicator of ULBs’ fiscal health and autonomy. This ratio reflects the ULBs’ ability to use the sources they are entitled to tap, and their dependency on IGTs. Cities with a higher share of own revenue are more financially self-sustaining.

Our study found that the ULBs’s own revenue was 47% of their total revenue. Of this, tax revenue was the largest component: around 29% of the total. There was a 7% increase in own revenue from 2012-13 to 2016-17, but ULBs still lacked revenue buoyancy as their share in GDP of own revenue was only 0.5% for the five-year period.

Property tax, the single largest contributor to ULBs’ own revenue, accounted for only about 0.15% of the GDP. The corresponding figures for developing and developed countries were significantly higher (about 0.6% and 1%, respectively) indicating that this is not being harnessed to potential in India. Estimates suggest that Indian ULBs’ can achieve these levels. It is essential that ULBs leverage their own revenue-raising powers to be fiscally sustainable and empowered and have better amenities and quality of service delivery.

Dependent on IGTs

Second, many ULBs were highly dependent on IGTs. Transfers from the Central government are as stipulated by the Central Finance Commissions and through grants towards specific reforms, while State government transfers are as grants-in-aid and devolution of State’s collection of local taxes. Most ULBs were highly dependent on external grants — between 2012-13 and 2016-17, IGTs accounted for about 40% of the ULBs’ total revenue.

Stable and predictable IGTs are particularly important since ULBs’ own revenue collection is inadequate. While dependence on IGTs dipped over the years due to modest increase in own revenue, the scale of IGTs in India remained at around 0.5% of GDP, which is far lower than the international average of 2% to 5% of GDP.

This can be improved by increasing the revenue assigned to ULBs from the State governments, and by allocating a share of the State and Centre’s GST proceeds to ULBs. This will cushion ULBs’ balance sheets as they mobilise their own revenue and explore market-based instruments. IGTs can also incentivise ULBs to deliver better service quality and maintain fiscal discipline.

Third, tax revenue is the largest revenue source for larger cities, while smaller cities are more dependent on grants. There are considerable differences in the composition of revenue sources across cities of different sizes. Class I-A cities (population of over 50 lakh) primarily depend on their own tax revenue, while Class I-B cities and Class I-C cities (population of 10 lakh-50 lakh and 1 lakh-10 lakh, respectively) rely more on IGTs.

Own revenue mobilisation in Class I-A cities increased substantially. It was primarily driven by increases in non-tax revenue. In the five-year period studied, tax revenue in Class I-A cities grew by about 11%, while non-tax revenue grew by about 30%. The external revenue dependency of these larger cities gradually reduced over time, from around 27% in 2012-13 to about 15% in 2016-17. Own revenues of Class I-B and Class I-C cities, on the other hand, were stagnant even while these cities grew in size.

Operations and maintenance

Fourth, operations and maintenance (O&M) expenses are on the increase but still inadequate. O&M expenses are crucial for the upkeep of infrastructure and for maintaining quality of service delivery. The share of O&M expenses in ULBs’ total revenue expenditure increased from about 30% in 2012-13 to about 35% in 2016-17. While the expenses were on the rise, studies (such as ICRIER, 2019 and Bandyopadhyay, 2014) indicate that they remained inadequate. For instance, O&M expenses incurred in 2016-17 covered only around a fifth of the requirement forecast by the High-Powered Expert Committee for estimating the investment requirements for urban infrastructure services.

O&M expenses should ideally be covered through user charges, but total non-tax revenues, of which user charges are a part, are insufficient to meet current O&M expenses. Cost recovery for services such as water supply, solid waste management, transportation and waste water management are thus clearly inadequate.

The non-tax revenues were short of the O&M expenditure by around 20%, and this shortfall contributed to the increasing revenue deficit in ULBs. Increasing cost recovery levels through improved user charge regimes would not only improve services but also contribute to the financial vitality of ULBs.

The scale of municipal finances in India is undoubtedly inadequate. A ULB’s realised own revenue resources are far below the estimated potential. Tapping into property taxes, other land-based resources and user charges are all ways to improve the revenue of a ULB. IGTs assume significance in the fiscal composition of ULBs, and a stable support from Central and State governments is crucial till ULBs improve their own revenues. Measures need to be made to also cover O&M expenses of a ULB for better infrastructure and service.