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Daily CUrrent AFfairs 17.03.2022 (SC backs Centre’s OROP scheme, A season of protests in Sri Lanka as economic crisis worsens, The curious case of sealed cover jurisprudence)

Daily CUrrent AFfairs 17.03.2022 (SC backs Centre’s OROP scheme, A season of protests in Sri Lanka as economic crisis worsens, The curious case of sealed cover jurisprudence)

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1. SC backs Centre’s OROP scheme

Court directs the Union govt. to conduct ‘re-fixation exercise’ from July 1, 2019

The Supreme Court on Wednesday upheld the Centre’s one rank, one pension (OROP) scheme for the armed forces.

A Bench led by Justice D.Y. Chandrachud held, “We find no constitutional infirmity in the OROP principle as defined in the government’s communication of November 7, 2015, on the implementation of the pension scheme.”

The OROP scheme stipulated that benefits would be effective for pensioners from the cut-off date of July 1, 2014. Pensions of past pensioners would be refixed on the basis of pensions of retirees in the calendar year 2013. The Centre, represented by Additional Solicitor-General N. Venkatraman, had promised that pensions of “all pensioners would be protected.” Finally, the scheme mandated the re-fixation of pension every five years.

The judgment dealt with a petition filed by the Indian Ex-Servicemen Movement, represented by senior advocate Huzefa Ahmadi and advocate Balaji Srinivasan, complaining that pensioners of the same rank, who were a “homogeneous class”, were arbitrarily being given varying pensions under the OROP scheme.

The amount of pension, they argued, should be uniform across armed forces personnel who retired with the same rank. They contended that the OROP had created a separate class among the personnel equally situated in rank and length of service. However, the court did not accept the argument.

“Varying pensions payable to officers of the same rank, retiring before or after July 1, 2014, either due to Modified Assured Career Progression (MACP) or different base salaries used for the calculation of pension, cannot be held arbitrary,” Justice Chandrachud, who authored the judgment, held.

Explaining the principle governing pensions and the cut-off date under the OROP, the court summarised that “all pensioners who hold the same rank may not, for all purposes, form a homogeneous class”.

The court summarised that it was “not a legal mandate that pensioners who hold the same rank must be given the same amount of pension”.

The court also did not accept the petitioner’s argument that re-fixation of pension after a gap of five years would leave them at a great disadvantage. The petitioner had contended that such periodic equalisation would “cause great injustice to 24 lakh ex-servicemen, 6.5 lakh war widows and veteran widows and their families by creating a situation of ‘one rank, different pension’”.

The court went on to direct the Centre to conduct the “re-fixation exercise” from July 1, 2019 — the date on which the first five-year period from 2014, expired. The Bench said there was limited scope for judicial review of government policy.

One Rank One Pension (OROP)

One Rank One Pension (OROP) means the payment of the same pension to military officers for the same rank for the same length of service, irrespective of the date of retirement.

As an example, consider an officer ‘A’ who had been in service for 15 years from 1980 to 1995. Also, consider another officer ‘B’ of the same rank and been in service for 15 years from 1995 to 2010. As per the OROP concept, both officers – since having the same rank and same length of service – should get the same pension.

Current System of Pension

The present system of determining pension depends on the last salary drawn. Fifty percent of the last salary drawn is typically the pension over and above which you get the other allowances.

In the current system, the importance is given to the last salary drawn, and not the length of the service.

What is the present issue with the defense pension?

  • Due to the present model of pension, a lieutenant general who retired in 1995 will get a pension that is 10% lower than a colonel who retired after 2006.
  • Similarly, a jawan who retired in 1995 will get a pension which is 80% less than his counterpart who retired on or after 1 January 2006.
  • The basic demand underlying OROP is to do away with the anomaly of doing away the disparity.

Arguments and Challenges

Arguments in Favour

  • The shorter period of service of military officers: The defense personnel is made to retire at the age of 33 to 35 years due to the necessity of maintaining a younger army whereas the officer of civil side retires at the age of 60 years.
  • It is the moral obligation of the state to look after the welfare of the soldiers who served the nation.
  • A lowered pay status compared to the civilian counterparts with less period of service affects the morale of forces.
  • The issues, veterans emphasize, are of justice, equity, honor, and national security.

The Challenges

  • Financial hurdle as the estimated time cost of implementation is 8000-10000 crore rupees. This will increase on every further revision of salary.
  • Expenditure on arrears would be around 10000 crore rupees.
  • Lead to demands from other army personnel like CRPF, CISF etc.
  • It is also an administrative challenge due to lack of records going back to many decades.

When did it all start?

In 1973, Indira Gandhi led congress terminated the OROP, the basis for deciding pension of Indian Armed Forces personnel which had been in vogue for 26 years since independence through an exparte administrative order. In addition to this, 3rd pay commission increased the pension of civilians and reduced pension of soldiers.

What is a Rank-Pay?

  • The Rank pay is a scheme implemented by the Rajiv Gandhi led Indian National Congress (INC) in 1986, in the wake of 4th Central Pay Commission that reduced the basic pay of seven armed officers’ ranks of 2nd Lieutenant, Lieutenant, Captain, Majors, Lt. Colonel, Colonels, Brigadiers and their equivalent in the air force and Indian Navy by fixed amounts designated as rank pay.
  • The reduction in grade pay apart from causing asymmetries in rank equivalence between officers from IPS and armed forces affected the basic pay, allowances, promotion prospects, status and pension of thousand officers in the service in Jan 1986 and decades after that.
  • The issue of OROP was mentioned in the 4th and 5th pay commissions but nothing materialized. This made the veterans protest and return their medals. The government then appointed the Koshiyari committee.

Koshiyari committee

  • Koshiyari committee is a 10 member all-party parliamentary panel formed under the chairmanship of Bhagat Singh Koshiyari. They have submitted the report in December 2011.
  • The committee accepted the demands of the veterans and defined OROP as: “It implies uniform pension be paid to armed forces personnel retiring in the same rank with the same length of service irrespective of their date of retirement and any future enhancements in the rate of pension to be automatically passed on to the past pensioners.“
  • This was accepted by the government as well as the veterans and this definition of the OROP is the basis for the ex-servicemen’s demand for implementation of OROP.
  • Despite the report, the UPA government was slow to reach out to the veterans and implement OROP.
  • Finally, the UPA government issued the implementation order on 26th February 2014 and released Rs. 500 crores in the interim budget which was grossly inadequate to satisfy the veterans.

Current Status of OROP

  • NDA government has accepted the OROP and already released Rs. 5500 crores to serve the purpose, but still, there are some grievances from the veterans’ side.
Government ProposalsVeterans Demands
Pensions will be refined for all pensioners retiring in the same rank as the average of the minimum and maximum pensions in 2013Veterans want the maximum to be taken as the base.
The scheme is effective from July 1, 2014, with 2013 as the base year.Veterans want OROP from April 1, 2014, and 2015 as the base year.
Proposed a review every 5 yearsWanted an annual review
  • The veterans noted governments’ proposal as one rank many pensions since the review of 5 years would lead to differences in pension between senior and a junior.

Demands of veterans vs 7th Pay Commission Recommendations

  • Veterans demanded the principle of same batch-same salary as in the case of their civil counterparts.
  • Military services pay to be extended to Major general as well as Lieutenant-general.
  • Civil–Military pay parity.
  • None of these was recommended by the 7th pay commission. The recommendations of the 7th pay commission also were not satisfactory and the demands of the veterans were not accepted.

2. A season of protests in Sri Lanka as economic crisis worsens

Sri Lanka is witnessing a string of protests this week by the political opposition and citizens, who blame the Rajapaksa administration for the country’s current economic crisis, sharply felt in the persisting shortage of fuel, cooking gas, and basic commodities that remain unavailable or unaffordable for many.

On Tuesday, tens of thousands gathered along capital Colombo’s sea-facing Galle Road, leading up to the Presidential Secretariat, in a rally led by Sri Lanka’s main opposition party Samagi Jana Balawegaya (SJB or United People’s Force). Party members and supporters raised anti-government slogans, asking President Gotabaya Rajapaksa “to go home”.

An image of an angry protestor, raising a pole with two loafs of bread stuck to it, was shared widely on social media, with captions about the dire state of people who are unable to buy even essential items.

The Sri Lankan rupee further dropped to nearly 265 to a U.S. dollar, as importers struggle to find dollars.

“If this Government, led by President Gotabaya Rajapaksa, Prime Minister Mahinda Rajapaksa, and Finance Minister Basil Rajapaksa cannot build the country, hand it over to us. We will build the country and show,” Leader of Opposition Sajith Premadasa said in his address, challenging the government to hold snap presidential polls that are otherwise due in 2024.

“You have been suffering now for two years. Can you suffer anymore?” he asked the large crowd gathered at the spot. The SJB held a similar protest in November 2021.

Citizens’ protest

It is not just the political opposition that is resisting in Sri Lanka, citizens in different pockets are holding independent vigils and protests to register their anger and disappointment with the government, over prolonged power cuts and persisting shortages.

Long queues at petrol stations and LPG distribution centres have become a common sight, amid growing reports of poor families eating fewer meals to cut costs.

Distancing themselves from all main political parties, the protesting citizens said they have little faith in any of them.

Private sector employee Aruna Wanigasooriya had never been to a public protest in his life until recently. Holding a candle and a poster asking politicians not to ruin the country, he stood along with some 200 other people at an upmarket Colombo locality earlier this week.

“Everyone knows there is a crisis. But the government does not have any strategy or solution for this problem. I am very upset, because this is our country and our children have to grow up here and live here. Where are we headed?” he asked.

An 84-year-old lady joined the protest, while being seated on a stool by the pavement. “I am desperate,” she said, asking not to be named.

“When you read the papers, or watch TV, you see how our people are just suffering. It’s only a matter of weeks before poor people take to the streets. The situation is very bad,” she added.

Hashtag war

It is not as if the government, which came to power on a formidable mandate, is untouched by the mounting public rage and criticism.

It appears to feel the pressure, going by a senior minister’s recent twitter message putting out the hashtag “#WearewithGota”, apparently countering ‘#GohomeGota” that is trending on social media.

3. The curious case of sealed cover jurisprudence

What kind of information comes under the purview of ‘confidential’? Is this practice of withholding documents against the idea of a fair trial?

Sealed cover jurisprudence is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.

The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

Critics of this practice contend that it is not favourable to the principles of transparency and accountability of the Indian justice system.

The story so far: While hearing a criminal appeal against the Bihar Government on Tuesday, Chief Justice of India (CJI) N.V. Ramana admonished a counsel for submitting a ‘sealed cover report’ to the court. The CJI asked the counsel to not submit the report in a sealed cover. “We will not accept it,” Justice Ramana remarked.

Later in the day, senior advocate Dushyant Dave recalled the same remarks to a bench led by Justice D.Y. Chandrachud hearing the government imposed ban on Media One channel. In this case too, the Centre had submitted relevant files to the court in a sealed cover.

“I am very averse to what is called the ‘sealed cover jurisprudence’,” Justice Chandrachud said.

What is sealed cover jurisprudence?

It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.

While a specific law does not define the doctrine of sealed cover, the Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

It is stated under the said rule that if the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information, except if the Chief Justice himself orders that the opposite party be allowed to access it. It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.

As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

Other instances where information may be sought in secrecy or confidence are when its publication impedes an ongoing investigation, such as details which are part of a police case diary.

When has it been done in the past?

Sealed cover jurisprudence has been frequently employed by courts in the recent past.

Documents were examined in sealed cover in multiple prominent cases during the tenure of the former Chief Justice of India, Ranjan Gogoi. In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by Chief Justice Ranjan Gogoi in 2018, had asked the Centre to submit details related to the deal’s decision making and pricing in a sealed cover. This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

In the matters related to the National Register of Citizens (NRC) in Assam, the Supreme Court mandated coordinator of the NRC, Prateek Hajela, was asked by the apex court to submit period reports in sealed cover, which could neither be accessed by the government nor the petitioners.

Another instance was in the 2014 BCCI reforms case. The probe committee of the cricket body had submitted its report to the Supreme Court in a sealed envelope, asking it not to make public the names of nine cricketers who were suspected of a match and spot fixing scam.

Similarly, in the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act (UAPA), the Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

In the case of activist Gautam Navlakha for instance, the police had submitted a sealed envelope including information recovered from the electronic devices seized from the activist. The police had stated that this information could not be disclosed to the accused as it would impede the ongoing investigation.

At the time, Navlakha’s counsel had countered the submission citing violation of his rights to fair adjudication, stating that the applicant did not know the contents of the sealed cover or whether it formed a part of the police’s case diary.

Information submitted by state agencies in a sealed cover was also relied upon in the 2G and coal scam cases, the Ram Janmabhoomi case, the high-profile case pertaining to the death of judge B.H. Loya, as well as the 2019 case pertaining to the release of Prime Minister Narendra Modi’s biopic around the national elections.

What is the criticism and what do the courts say?

Critics of this practice contend that it is not favourable to the principles of transparency and accountability of the Indian justice system, as it stands against the idea of an open court, where decisions can be subjected to public scrutiny.

It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for their decisions, but this cannot be done when they are based upon information submitted confidentially.

What is further contested is whether the state should be granted such a privilege to submit information in secrecy, when existing provisions like in-camera hearings already provide sufficient protection to sensitive information.

Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication. In the 2019 judgment in the case of P. Gopalakrishnan vs The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing and said documents may lead to a breakthrough in the investigation.

In the INX Media case in 2019, while granting bail to Congress leader P. Chidambaram, a Bench of the Supreme Court had criticised the Delhi High Court for basing its decision to deny bail to the former Union Minister on documents submitted by the Enforcement Directorate (ED) in a sealed cover.

The three-judge Bench of Justices R. Banumathi, A. S. Bopanna, and Hrishikesh Roy had said: “Though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail”.

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