1. Scandinavian social democracy
The Nordic model of social democracy offers lessons to the developing world, including countries like India despite the myriad complexities of diversities
The rise of the Sweden Democrats (SD), a party with origins in the neo-Nazi movement in the country, to the mainstream of the Swedish polity has much to do with the centring of the discourse over immigration in the country.
Scandinavian countries have these features in common— reliance on representative and participatory democratic institutions where separation of powers is ensured; a comprehensive social welfare schema with emphasis on publicly provided social services and investment in child care, education and research among others, that are funded by progressive taxation; presence of strong labour market institutions with active labour unions and employer associations which allow for significant collective bargaining etc
The pole position for left of centre/ social democratic parties in these countries, because of thriving labour and environmentalist movements in civil society, has helped generate a political consensus on the welfarist model resulting in even right-wing/ right of centre parties keeping them more or less intact.
In elections held in Sweden recently, while the Social Democrats returned as the single largest party according to preliminary results, a fractured mandate left it with only 107 of the 349-seat strong Riksdag (Swedish legislature) and 30.33% of the vote share. This meant that the coalition that the Social Democrats were part of, which included the Centre Party, the Left Party and the Green Party, were left with 173 seats, as opposed to the right-wing coalition led by the Moderate Party, which bagged 176 seats. The Moderate Party itself won only 68 seats, two lower than its previous tally in 2018, but the major gains among the Right was made by the far-right Sweden Democrats who won 73 seats and 20.54% of the votes, according to preliminary tallies.
Incumbent Prime Minister Magdalena Andersson of the Social Democrats conceded defeat and resigned, even as Moderate leader Ulf Kristersson is expected to form the government with other right-wing parties offering support.
A threat to the Nordic model
The rise of the Sweden Democrats (SD), a party with origins in the neo-Nazi movement in the country, to the mainstream of the Swedish polity has much to do with the centring of the discourse over immigration in the country. Several voters have expressed their concerns with rising immigrant violence and control of crime. The SD has taken a strident position against immigrants — Sweden played a major role in allowing refugees fleeing the Syrian, Iraq and Afghanistan wars to seek asylum in the 2010s — by promising to make it extremely difficult for asylum seekers to enter the country. But does the rise of the polarising presence of the SD — which is not expected to be part of the new right-wing government but could lend issue-based support to it — threaten the political and social consensus driven Nordic model as it is called in Sweden and other Scandinavian countries? To answer that question, we need to understand what is meant by the Nordic model, or if U.S. Senator Bernie Sanders’ version is accepted, “democratic socialism”.
Socialism and social democracy
Terming the political-economic system in the Scandinavian countries, despite its strong welfarist basis and emphasis on collective bargaining as “socialist” would be a misnomer. For one, the term “socialism” is associated with the regimes of the erstwhile Communist bloc, which had a heavy preponderance of the state in not just the ownership of the major means of production but also in political life with a one-party system drawing its ideological basis for rule on behalf of the working class.
Following the collapse of the Soviet Union, new socialist regimes in recent years have sought to distance themselves from the one-party model in the so-called “second world”, instead focusing on retaining the functioning of market economies, while emphasising redistribution of wealth and a greater preponderance for the state in this process. The regimes in Latin America led by ruling parties in Venezuela, Bolivia and recently in Chile, can be termed “democratic socialist” — seeking to achieve socialist goals of redistribution and restructuring of formal democratic and liberal institutions in vastly unequal and elite driven systems.
In the Scandinavian countries, on the other hand, the systems are more akin to typical “social democracies” — reliance on representative and participatory democratic institutions where separation of powers is ensured; a comprehensive social welfare schema with emphasis on publicly provided social services and investment in child care, education and research among others, that are funded by progressive taxation; presence of strong labour market institutions with active labour unions and employer associations which allow for significant collective bargaining, wage negotiations and coordination besides an active role in governance and policy. All these countries also follow a capitalist model of development, allowing for entrepreneurism and funding of welfare policies through a large degree of wage taxation in relation to corporate taxes.
The commonalities in the Scandinavian countries — Norway, Sweden, Denmark, Finland and Iceland — on many of these counts are measurable. For example, among countries in the Organisation for Economic Cooperation and Development (OECD) (featuring most high-income countries in the world), Iceland (90.7% of the workforce), Denmark (67%), Sweden (65.2%), Finland (58.8%) and Norway (50.4%) have the highest proportion of the workforce belonging to trade unions (data as of 2019). Education is free in all the Nordic States; health care is free in Denmark and Finland and partially free in Norway, Sweden and Iceland ; workers get several benefits — from unemployment insurance to old age pensions, besides effective child care. Therefore, labour participation rates in these countries are among the highest in the world (even among women). The five Nordic nations rank in the top 10 among OECD countries in government expenditure on health and education if calculated as percentage of GDP.
The countries have undertaken a series of steps in deregulation of industry and privatisation of some public services since the heydays of the Keynesian era till the 1970s but they retain the emphasis on welfare, taxation and investment compared to the rest of the world and Europe in particular. This has helped these countries achieve significant outcomes — high levels of international trade and participation in globalisation, economic progress, low levels of inequality and high living standards. In the most recent UNDP report, Norway ranked second among countries in the Human DeveIopment Index (0.961), Iceland stands at fourth (0.959) Denmark at sixth (0.948), Sweden at seventh (0.947) and Finland at 11 (0.940). The Nordic countries ranked the highest in various indices on press freedom across the world and in indices measuring gender equality. They were placed among the top 20 countries in GDP per capita (PPP, $) according to the World Bank’s recent data.
One key reason for the thriving social democratic model in the Nordic countries has been their relatively smaller and more homogenous populations enabling focused governance. The “corporatist” model of involving interests of both capital and labour, mediated by the government at many levels, has allowed these countries to transition from agrarian to industrial to post-industrial (in some cases) and knowledge/service economies relatively smoothly. The tripartite consensus approach has also emphasised social policies “that facilitate expansion of modern production, and thus more and better paid jobs”, as a book by Olle Tornquist and John Harriss lays out.
The other commonality is the political presence of the Social Democratic Parties in these countries. Norway is ruled by the social democratic Labour Party in coalition with the agrarian Centre Party; Denmark is ruled by the Social Democrats who are supported by the Red-Green Alliance, the Socialist Peoples’ Party and the Social Liberal Party; Finland’s government is led by the Social Democratic Party in coalition with the Centre Party, the Green League, the Left Alliance and the Swedish People’s Party and Iceland is ruled by a coalition led by the Left-Green Movement, which overtook the opposition’s Social Democratic Alliance as the leading left force in the country. These social democratic parties consolidated support by mitigating the effect of the global economic crisis in the 1930s. In contrast to other social democratic parties in Europe who faltered against the Nazis in Germany for example, the Scandinavian social democrats “fortified democracy, entered into broad alliances with agrarian parties based on favourable agricultural prices and universal social security… gave less priority to issues of ownership [than to] economic expansion, more jobs and increasing tax incomes….[This lead to] equal citizenship rights and pragmatic class compromises”, say Tornquist et al.
While social democratic parties today no longer enjoy the dominant presence in the political party systems of these countries, they are still the largest organised forces in most Nordic countries. The pole position for left of centre/ social democratic parties in these countries, because of thriving labour and environmentalist movements in civil society, has helped generate a political consensus on the welfarist model resulting in even right-wing/ right of centre parties keeping them more or less intact. The key differences between these parties have been on social and immigration related issues and some commentators believe that the rising influence of the SD in Sweden will not be a threat to its welfarist model despite the roots of the far-right party. In many ways, the Nordic model of social democracy offers lessons to the developing world, including countries like India despite the myriad complexities of diversities, differential internal development and histories.
2. The significance of Ethereum’s Merge for the future of cryptocurrencies
Why has Ethereum switched to a new way of verifying transactions on the blockchain? Will the switch enable efficient energy consumption and will other cryptocurrencies like Bitcoin follow suit?
The story so far: On September 15, the Ethereum blockchain fully transitioned to a new way of processing transactions. This is an important day for crypto trackers as the Ethereum’s Merge event, as it is known, could change the nature of crypto and Web3 itself. Developers say the transition to what is called a ‘proof-of-stake’ consensus mechanism will cut Ethereum’s energy consumption by 99.95%. The switch happened after months of delay and shifting timelines.
What is Ethereum?
Ethereum is one of the most used platforms by developers to build decentralised apps (dApps), smart contracts, and even crypto tokens. The platform’s currency, Ether is only second to Bitcoin (BTC) in terms of market capitalisation. The change in the way Ethereum builds the blockchain comes with not just environmental consequences, but also major cyber and financial security implications.
What is the importance of consensus mechanisms? Why is there a need for a new mechanism?
Decentralised transactions are processed on blockchains using consensus mechanisms. Ethereum’s former method, ‘proof-of-work’, which is also used by Bitcoin, needs powerful mining hardware that consumes a lot of electricity and generates enormous amounts of heat. This energy is then used to process extremely difficult mathematical puzzles, the solution of which would let new transactions be added to the blockchain so as to reward the miners with crypto.
Many environmentalists, policy makers, and regulators have strongly criticised the impact of Bitcoin mining on local communities. Common centres for mining included China (before a near total crypto ban), the U.S., Russia, and Kazakhstan — countries with cheap electricity rates and colder climates. Ethereum’s website admitted that their crypto’s total annualised power consumption nearly matches that of Finland while its carbon footprint is comparable to Switzerland. For some time, European countries even mulled a crypto mining ban, while China actually carried out a nationwide crackdown on crypto miners, sending them fleeing overseas.
Probably as a response to the backlash, Ethereum has decided to switch to a ‘proof-of-stake’ consensus mechanism, where Ether owners will stake their own coins in order to serve as collateral and help process new blockchain transactions, in return for rewards. Crypto experts are divided as to which consensus mechanism offers better protection from hackers. Theoretically, there are ways to hack both verification methods. But Ethereum claims the proof-of-stake consensus mechanism offers better security.
Will Bitcoin switch to a proof-of-stake consensus mechanism?
Bitcoin switching to a proof-of-stake consensus mechansim seems highly unlikely. To understand why, we need to look at how Bitcoin and Ethereum are different, in spite of both dominating the crypto space. Satoshi Nakamoto, the pseudonymous creator of Bitcoin, authored a white paper in the late 2000s that explicitly stresses on the importance of the “proof-of-work” mechanism to secure the blockchain. (Till date, no one knows who Nakamoto is or even if they are a person or an organisation)
The paper insists that it’s essential for honest actors to control a majority of the Central Processing Unit (CPU) power to keep transactions safe from illicit actors. Bitcoin has been praised by decentralisation advocates for its non-interfering founder (or founders) and largely unregulated structure.
Switching to a proof-of-stake consensus mechanism would violate the principles of decentralisation outlined in the Bitcoin white paper. It would also represent losses in millions of dollars for individual miners and companies trying to solve the puzzles that would reward them with BTC.
Some Bitcoin supporters go so far as to say that miners’ activities, though harmful to the environment now, will help bring about an energy revolution and the faster adoption of solar, wind, gas, and nuclear energy. However, consequences of crypto mining across the globe have included mass electricity blackouts, fire accidents, overburdened grids, struggles between locals and crypto miners for more control over the energy supply, and even crypto mining on indigenous land.
Ethereum, on the other hand, was co-founded by Vitalik Buterin, who has an active presence on Twitter. He has also attended various international crypto events. The blockchain is backed by a powerful non-profit organisation to support its activities — the Ethereum Foundation.
Therefore, as far as the Ethereum community is concerned, miners will no longer produce valid blocks for the Ethereum blockchain. In the coming days, the Ethereum community and the media will be tracking how former Ether miners cope with the transition.
Which other cryptocurrencies are changing to proof-of-stake now?
For now, no other top coin is planning an Ethereum-style Merge. After Bitcoin, Dogecoin [DOGE] is the largest proof-of-work based cryptocurrency. It was initially created as a joke by its founders. After that comes Ethereum Classic [ETC], formerly part of Ethereum before a community schism. Ethereum Classic has made it clear that it is loyal to the proof-of-work mechanism. It has invited miners to mine ETC and has said that stakers are free to choose ETH2.
“May both chains co-exist in their own right providing options for stakers and miners,” Ethereum Classic tweeted on Thursday. Traders are also watching the markets and charts to see if other proof-of-work coins experience a price lift from new investors who don’t want to support a proof-of-stake Ethereum.
3. No negotiations at the cost of food security, says Tomar at agriculture conference
Food is an essential fundamental right; developing countries will be motivated by the need to ensure that the rights of farmers producing food are never compromised, says Minister
No negotiation is possible at the cost of food security, Union Agriculture and Farmers Welfare Minister Narendra Singh Tomar said at the ninth session of the governing body of the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) on Monday.
“All international forums must not forget that food is an essential fundamental right. Developing countries will be motivated by the need to ensure that the rights of farmers producing food are never compromised,” he said adding that the struggle for climate resilient agriculture and nutritional security depends heavily on the decisions and actions of the signatories.
Mr. Tomar also talked about plant genetic resources being the source of solution to breeding challenges. “We must use all modern technologies as well as traditional knowledge to preserve and use them in a sustainable manner,” he said.
Qu Dongou, Director General, FAO, said the meet is celebrating smallholder farmers as guardians of crop diversity. “They are food heroes and their contributions must be recognised. The world is heading for a population of nine billion. The impacts of the climate crisis and biodiversity loss are putting pressure on agriculture,” Dr. Dongou said.
The ITPGRFA was signed during the 31st session of the United Nations Food and Agriculture Organisation (FAO) in Rome in November 2001. The treaty seeks to achieve food security through the conservation, exchange and sustainable use of the world’s Plant Genetic Resources for Food and Agriculture (PGRFA), equitable sharing of profits from its use, as well as playing an important role in the recognition of rights of farmers.
International Treaty on Plant Genetic Resources for Food and Agriculture
- It was adopted by the 31st session of the Conference of the Food and Agriculture Organization (FAO) of the United Nations on 3rd November 2001.
- Farmers’ Contribution: To recognize the contribution of farmers to the diversity of crops,
- Access and Benefit Sharing: Establish a global system to provide farmers, plant breeders and scientists with access to plant genetic materials,
- Sustainability: To conserve and sustainably use plant genetic resources for food and agriculture, and fair and equitable sharing of the benefits arising out of their use, in harmony with the Convention on Biological Diversity.
- It is also known as Seed Treaty as it is a comprehensive international agreement for ensuring food security through the conservation, exchange and sustainable use of the world’s Plant Genetic Resources for Food and Agriculture (PGRFA).
- India is a signatory to the treaty.
Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001
- It aims to protect Farmers’ and breeder’s rights.
- According to the act, a farmer is entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under the PPV&FR Act, 2001 except the brand name.
- The Act is compliant to Article-9 of the Seed Treaty.
- Under the provisions of this Act, 138 farmers/farming communities have been awarded with the Plant Genome Saviour Awards by the Protection of Plant Varieties and Farmers’ Rights Authority.
- The award is given annually to the farmers engaged in the conservation of genetic resources of landraces (dynamic populations of a cultivated plant) and wild relatives of economic plants and their improvement.
- In April 2019, PepsiCo sued Gujarati farmers by invoking the provisions of the act.
4. Editorial-1: The hijab case and the essential practices doctrine
A two-judge Bench of the Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka. Over the last few days, counsel for the petitioners has addressed a bundle of different issues, ranging from the rights of students to freedom of expression, conscience, and religion to the disparate impact that the ban has had on the right to education of Muslim women.
In theory, the issues emanating out of these submissions ought to be capable of easy resolution, through an application of ordinary doctrines of constitutional law. But, as transcripts from the hearings have shown us, every time an argument over religious freedom in India is made, it invariably mires itself in the court-crafted doctrine of essential practice. This requires judges to engage not merely in legal analysis but also in theological study — something an education in the law scarcely equips one to perform.
Possible actions by the Bench
The Karnataka High Court made three primary findings in its judgment. First, it held that the use of a hijab is not essential to the practice of Islam. Thus, the right to freedom of religion was not violated. Second, it ruled that there exists no substantive right to freedom of expression or privacy inside a classroom and, therefore, these rights were simply not at stake here. Third, it held that the ban did not stem directly out of the government’s order, which only called for a uniform dress code to be prescribed by the State or school management committees, and, hence, the law did not discriminate, either directly or indirectly, against Muslim students.
To decide on the correctness of this verdict, the Supreme Court need not answer all the questions posed before it. A reversal of any of the three findings made by the High Court ought to result in a nullification of the ban. If the petitioners can establish that the law’s seemingly neutral language does not negate the ringfencing of most forms of expression against the singling out of the hijab, and for that reason if they can show that Muslim women have been discriminated against, the Bench must reverse the High Court’s judgment. Similarly, if the petitioners can establish that there is nothing to suggest that there exists no right to freedom of expression within the confines of an educational institution, then the onus shifts to the State to show that the ban is proportionate and legitimate. That analysis was never conducted by the High Court because in its belief, classrooms are “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum”.
The Supreme Court should be able to decide these questions based on settled canons of constitutional law. And if the Bench were to find that the Karnataka High Court erred in deciding either of these issues against the petitioners — and there is substantial merit here to the petitioners’ arguments — perhaps it might be keen on ignoring altogether the question of whether the ban impinges on the right to freedom of religion. For that analysis, on the law as it stands today, requires it to engage in a study of scriptures and conventions, and to then determine how indispensable the practice is to faith.
As a kind of inquiry
The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar in the Constituent Assembly. “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death,” he said. “…I do not think it is possible to accept a position of that sort… we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that… laws relating to tenancy or laws relating to succession, should be governed by religion.”
Ambedkar was striving to distinguish the religious from the secular, by arguing that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.
Indeed, it was in this vein that the Supreme Court, in the case concerning the Shirur Mutt (1954), held that to determine what constituted an ‘essential’ aspect of religion, the Court ought to look towards the religion concerned, and to what its adherents believed was demanded by their faith. But since then, the Court has, with a view to determining the kinds of circumstances in which the state could legitimately intervene, transformed this doctrine into an altogether different form of inquiry.
In a series of cases, the Court has assumed something akin to an ecclesiastical power and determined whether a practice which was religious in nature was also “essential” to that religion. The upshot is a conflation of tests through which the Court is now deciding not only when the state could lawfully interfere in the interests of social welfare and reform, but also which practices are deserving of constitutional protection in the first place.
The embedding of this test in the Court’s jurisprudence has achieved at least two things, neither of which is particularly desirable. First, it has allowed the Court to narrow the extent of safeguards available to religious customs by directly impinging on the autonomy of groups to decide for themselves what they deem valuable, violating, in the process, their right to ethical independence.
Second, it has also negated legislation that might otherwise enhance the cause of social justice by holding that such laws cannot under any circumstances encroach on matters integral to the practice of a religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community when it held that the power to excommunicate is an essential facet of faith and that any measure aimed at social welfare cannot reform a religion out of its existence.
The essential practices test is not without alternatives. In his concurring opinion, in the case concerning the ban on entry of women into the Sabarimala temple, Justice D.Y. Chandrachud proposed one such doctrine: a principle of anti-exclusion. Its application would require the Court to presume that a practice asserted by a religious group is, in fact, essential to the proponents of its faith. But regardless of such grounding, the Constitution will not offer protection to the practice if it excludes people on grounds of caste, gender, or other discriminatory criteria. As Justice Chandrachud put it, “the anti-exclusion principle allows for due-deference to the ability of a religion to determine its own religious tenets and doctrines. At the same time, the anti-exclusion principle postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution”.
But until such time as the essential practices doctrine is overruled by a Bench of more than seven judges, the Court is bound to apply its tenets. Perhaps that reassessment will happen when a nine-judge Bench constituted in the review petitions filed against the judgment in the Sabarimala case passes judgment. For now, any Court hearing a matter touching upon a matter of faith has the unenviable task of acting not merely as an expert on law but also as an expert on religion.
5. Editorial-2: It is the people of Pakistan who are suffering
A humanitarian act can also be part of smart diplomacy, and India ought to make a distinction between the government and the people
Pakistan is facing a severe crisis that is unprecedented. A third of its territory is under water, the death toll has crossed 1,400, and over 33 million people are suffering from the disruption caused by the flood. Two million acres of farmland are under water; 5,735 kilometres of transport links, and 1.6 million houses have been washed away, while 7,50,000 heads of livestock have been lost. According to the World Health Organization, 6.4 million people need support, while 16 million children are in distress with 3.4 million of them needing ‘life-saving’ support, according to UNICEF. Water-borne diseases are spreading. The crisis, in retrospect, began on June 14, 2022. Sind and Balochistan experienced 784% and 500% more rain, respectively, according to Sherry Rehman, Minister of Climate Change. The Pakistani government failed to act promptly, and political leaders have not bothered to call for a ceasefire to their quarrels that prevent the government and society from giving their undivided attention to the catastrophe.
On August 26, 2022, Pakistan Prime Minister Shehbaz Sharif cut short his visit to Qatar and met with international organisations and a few governments including those of China, the United States and the United Kingdom. An amount of $500 million was pledged, with the World Bank giving $350 million and the United Nations World Food Programme (WFP), $110 million.
The obvious question is about what India has done and should have done. On August 29, 2022 Prime Minister Narendra Modi tweeted: ‘Saddened to see the devastation caused by the floods in Pakistan. We extend our heartfelt condolences to the families of the victims, the injured and all those affected by this natural calamity and hope for an early restoration of normalcy.’
The Indian media has reported that the matter of sending aid to Pakistan has been under discussion and that Pakistan has not asked for help so far. The day Mr. Modi tweeted, Miftah Ismail, the Finance Minister of Pakistan, told the media that the government was thinking of re-opening road traffic with India. Till now, Pakistan has not declared its decision in the matter.
Dealing with Pakistan
Pakistan often finds it difficult to formulate a policy on relations with India based on enlightened self-interest. The closure of road traffic following the change in the status of Jammu and Kashmir in 2019 was unnecessary posturing by Pakistan. How does it help the consumer in Pakistan to receive goods from India via Dubai? Was there any reason to hold that by closing the road India would reverse its decision? The Pakistan military that derives its immense political clout by inventing military threat from India will obviously oppose accepting aid from India. Even when there is a civilian government, the military has a major say on relations with India. It should be self-evident that a humanitarian act per se does not require any justification. Unfortunately, when it comes to Pakistan, India finds it difficult at times to do what is obviously right.
In private discussions, not many in Delhi are for sending aid to India’s neighbour. The reasons vary. Some say that in 2010, when India offered help, Pakistan ‘humiliated’ us by insisting on routing it through the United Nations. Others say that India should wait for Pakistan to make a request.
Neither argument stands scrutiny. Why should we bear the baggage of 2010? Pakistan acted in a ridiculous manner then. Is it not equally ridiculous to let that act of Pakistan prevent us from doing what is right? When it comes to a humanitarian act, there is no need to wait for someone to beg. In any case, we should make a distinction between the government and the people of Pakistan. It is the people who are suffering.
The 17th century French philosopher, Blaise Pascal, conducted an interesting and intriguing thought experiment when he said: Cleopatra’s nose, had it been shorter, the whole face of the world would have been changed.
Imagine a thought experiment: On August 27, 2022 when Ms. Sherry Rehman said that 30 million people had been affected, India announced its readiness to send 5,000 tons of vegetables, including tomatoes and onions, and medicines by road to Pakistan. Additionally, it was prepared to send a medical mission for children in distress. More aid could have been sent by sea to Karachi. India has through diplomatic channels even asked Pakistan to send a team to discuss the modalities.
Let us look at two possible scenarios: first, the Pakistan government rejects India’s offer and finds itself in trouble with the people as the price of tomatoes (Pakistan rupee 500 per kilo), and onions (Pakistani rupee 400 per kilo) shoots up. Second, Pakistan accepts the offer, and the WFP, the World Bank, and other donors source relief material from India for obvious reasons to do with logistics. The Pakistan government has estimated that $30 billion is needed for relief and rehabilitation. A good part of the material could be sourced from India. In conclusion, India should act without further delay. The United Nations Secretary General is likely to convene a conference of donors on assistance to Pakistan. India would find it awkward not to take part and it would be better for it to announce assistance before this. It is obvious that a humanitarian act can also be part of smart diplomacy. India as the major regional power in South Asia should act as one, able and willing to discharge its responsibilities as promptly as humanly possible.
6. Editorial-3: Knowing the killer
SC has done well to seek norms to present mitigating factors for death
Sentencing after conviction is a knotty problem in cases relating to capital offences. Trial judges are called upon to make a decision on whether only a death sentence will meet the ends of justice, or a life term will be enough. As a salutary norm, the Supreme Court has laid down that the death penalty can be imposed only in the “rarest of rare” cases. Subsequent judgments have sought to buttress this principle by holding that the gruesome nature of the offence may not be the sole criterion to decide what brings it under the ‘rarest of rare’ category. The offender, his socio-economic background and his state of mind are also key factors in this regard. In practice, the sentencing part of the trial takes place after the court records a conviction. It is often done on the same day as the verdict, with only some limited arguments being heard on ‘mitigating circumstances’ from the convict’s side and on the ‘aggravating circumstances’ from the prosecution. The latest order of a three-judge Bench, referring to a Constitution Bench the issue of granting a meaningful opportunity to convicts on the question of sentence, is a big stride in humanising the sentencing process.
Same-day sentencing has been upheld by several judgments, with the Supreme Court often saying where a meaningful opportunity has been given to the convict to present mitigating factors, the mere fact that death was awarded on the same day would not vitiate the sentence. Some High Courts have given a chance to convicts to present mitigating factors so that the inadequacy of the sentencing process in the trial court does not matter. Present thinking, however, is veering towards the view that courts must elicit reports from the jail authorities, probation officers and even trained psychologists to assess the mitigating factors in favour of not imposing the death penalty. In its referral order, the Bench has also raised the question as to the stage at which mitigating factors are to be presented. It has noted that the scales are tilted against the convicts now, as it is only after conviction that they are able to speak about mitigating circumstances. The prosecution, on the other hand, presents its case from the beginning on how heinous the crime was, and how much the accused deserved maximum punishment. The Constitution Bench may come up with new guidelines under which the trial courts themselves can hold a comprehensive investigation into factors related to the upbringing, education and socio-economic conditions of an offender before deciding the punishment. The legal and moral dilemma of sending someone to the gallows, of course, will subsist only as long as the death penalty remains on the statute book.
7. Editorial-4: From Lodha to Ramana: The Chief Justices of the Modi era
In its most essential form, the Indian Supreme Court is the custodian of the Constitution of India. In this role, its primary responsibility is to ensure that the fundamental rights of citizens guaranteed under the Constitution are not diluted, eroded, or otherwise impinged upon by the state. It might have begun its existence as a passive court, but over the decades, it has become what I believe to be the most powerful court among its peers in the world.
This superior status manifests itself in at least three ways. Firstly, through its decision in Keshavananda Bharati, the Court assumed the power of judicial review over constitutional amendments. Secondly, through multiple decisions, it assumed the power of judicial appointments to itself and High Courts. And thirdly, it expanded the fundamental right to life and liberty under Article 21 of the Constitution through guaranteeing citizens unique and wide ranging protections, and ensuring the right to approach courts through public interest litigation.
At its helm sits the Chief Justice of India, or the CJI. The duties and responsibilities that come with the office of the CJI are unmatched by any other role in the country. In theory, at least, the CJI must exhibit judicial and administrative talent of an unusually high order. A sample of the responsibilities of the office include selecting judges for appointment to the higher judiciary, deciding the number and composition of benches to adjudicate on different kinds of cases, besides performing normal judicial duties. As George H. Gadbois puts it, the Chief Justice should be ‘a competent administrator, a shrewd judge of men and personalities, and a towering personality himself’.
But, by dint of circumstance, and to some degree by choice, the Indian judiciary evolved to follow the seniority convention in appointing the Chief Justice of India. As a result, while the persons who eventually become Chief Justice may not have been appointed for exhibiting certain qualities, they are compelled to develop these skills on the job, and some have done so with aplomb, e.g., Justice Subba Rao, Justice Venkatachaliah, and Justice J.S. Verma. However, an unfortunate fallout of the seniority convention is that Chief Justices tend to have very short tenures in office. Over 75 years, the Indian Supreme Court has already had 49 Chief Justices. Justice Y.V. Chandrachud, in the 1980s, had an exceptionally long tenure of over seven years, while at the other extreme, Justice K.N. Singh occupied the office for a mere 17 days.
This large number of Chief Justices provides for an interesting data set to study the evolution of the office, and the relationship of the judiciary with the executive, which can be roughly classified into the following eras. From 1950 to 1971, the Chief Justice had complete authority over judicial appointments, and the recommendation of the Chief Justice would always be followed, even to the extent of powers of a veto.
Between 1971 and 1993, strong single party governments occupied the Centre, and the executive insisted on appointing ‘committed judges’ to the Supreme Court, in a clear attempt at court packing. Multiple supersessions took place, with the executive exercising prerogative in appointing Chief Justices, and the seniority convention was openly flouted. The shocker came with the decision in the first judges’ case in 1981 (SP Gupta), where it was held that the opinion of the Chief Justice of India would not be binding on the government.
With the second judge’s case in 1993, and around when Justice M.N. Venkatachaliah took over as the CJI, the trend reversed and the judiciary practically wrested the power of appointments back from the executive. Judicial primacy and the collegium’s creation happened in this period, and while the collegium has since acquired considerable notoriety for being arbitrary and undemocratic, it still occupies the field today.
When we examine the evolution of the Indian Supreme Court and the office of the CJI, it is a classic example of a constant shifting and rebalancing of power between the judiciary and the executive. When the executive was powerful, the judiciary practically succumbed to the executive’s control. However, when relatively weaker coalition governments were elected, the judiciary restored powers to itself.
This rebalancing is playing out again now. Since 2014, the executive is once again a single party majority under the Narendra Modi-led BJP government. Consequently, the judiciary’s powers are weaker than before, and the executive is back in control. We see a rise in autocratic tendencies of the executive, through the slow destruction of democratic institutions, the misuse of investigating agencies, communal polarisation, and a gradual chipping away at constitutional protections available to citizens, all of which a weak judiciary is unable or disinclined to tackle.
From 2014 to 2022, the eight years the Modi government has been in power, eight individuals have occupied the office of the CJI, from Justice R.M. Lodha as the 41st Chief Justice to Justice N.V. Ramana as the 48th. This article attempts to examine how their tenures have contributed to the evolution of the Court and the office of the CJI.
The CJIs of the Modi era
Immediately before the Modi government first came to power in 2014, the CJI was Justice P. Sathasivam, who, rather unfortunately, chose to accept the Governorship of Kerala almost immediately after he demitted office. This unusual and arguably irregular appointment was made without an appropriate cooling period, and went against the BJP government’s own policy, with Arun Jaitley having openly proclaimed that giving jobs to judges upon retirement would help governments influence courts. This also set a dangerous precedent for future judges, that is seen even today.
What might have been perceived as a gauntlet thrown into the ring by the executive did not deter Justice Sathasivam’s successor, Justice R.M. Lodha, from making bold and unconventional decisions of his own. Most notably, he revived the dormant trend of direct appointments from the Bar to the Bench in the Supreme Court, a practice which was permitted under the Constitution, but seldom attempted. His recommendations were mostly successful, but one was famously not, with the appointment of Gopal Subramaniam being refused by the government. This could have been the Modi government’s first confrontation with the judiciary, and Justice Lodha even later said that he was open to pursuing Mr. Subramaniam’s appointment, but the lawyer himself withdrew his candidature, due to which confrontation was sidestepped. Justice Lodha became a household name for his report on reforms in the Board of Control for Cricket in India. Ironically his report was subsequently completely diluted by the very Court that had appointed the committee to recommend reforms in the first place.
It was under Justice H.L. Dattu, who followed Justice Lodha as CJI, that the first major confrontation between the executive and the judiciary took place. The fourth judge’s case, concerning the validity of the National Judicial Appointments Commission (NJAC) Act, had been referred to a five judge Bench, and heated arguments ensued. The judiciary stood its ground and eventually emerged victorious, and the NJAC Act, an undoubtedly flawed legislation, was struck down. While the collegium is an arbitrary, secretive and undemocratic process of judicial appointment, and communication and transparency in its operations are more than desirable, the design of the NJAC as proposed was not the appropriate solution. However, the Supreme Court could have fixed the flaws in the NJAC Act, perhaps by reading down the provisions to address its shortcomings, but chose not to do so.
After the NJAC judgment, matters were still not settled, and the memorandum of procedure for appointments to the higher judiciary became the centrepiece of the dispute between the executive and the judiciary. The tension continued when Justice T.S. Thakur took over as the CJI. He was the last CJI in the Modi era to have shown some spine in matters of judicial administration and appointments. Besides vociferously highlighting the plight of the overburdened Indian judiciary, in one instance even shedding tears in the Prime Minister’s presence, Justice Thakur assiduously worked at mechanisms of filling up of vacancies, authoring an important judgment in this regard. He set the National Judicial Data Grid rolling, which today connects all levels of the judicial system and provides a surfeit of information to litigants.
But his reform efforts took a controversial turn when he attempted about 20 transfers of judges across High Courts. He was not the first judge to attempt such large-scale transfers; Justice Venkatachaliah and Justice S.H. Kapadia had tried this too, but their motivations for the transfers were not always unambiguous, and their experiments arguably failed, with many transferred judges being repatriated. Legal scholars and even former judges have lamented that such transfers are akin to treating judges like civil servants, and are a grave threat to the independence and overall integrity of the judiciary. Some of Justice Thakur’s transfer orders were evidently bad calls, and were reversed soon enough.
Unfortunately, transfers continue till date, many being arbitrary and unjustified, and following no documented policy. Notwithstanding his swipes at controversy, Justice Thakur was also the last Chief Justice to really stand up to the government. Up until here, the Supreme Court had stood its ground while confronting the executive. After this, things changed completely.
India’s first CJI from the Sikh community, Justice J.S. Khehar, had a short tenure of less than eight months, in which he was party to many landmark judgments, including the Right to Privacy and Triple Talaq judgments. Justice Khehar’s term also revived debates on the lack of transparency and fairness in managing the roster in the Supreme Court, an issue that spanned the tenures of multiple CJIs thereafter.
Certain unproven allegations in a suicide note by Kalikho Pul, a former Chief Minister of Arunachal Pradesh, directed at multiple judges, including Justice Khehar himself, came to the Court’s attention. Without dwelling on the veracity of the allegations, the procedure Justice Khehar followed was without precedent and also without propriety. The Supreme Court, in its own decision in Veeraswami, had said that criminal proceedings against someone in the higher judiciary could only be initiated in consultation with the CJI. Further, if allegations were made against the CJI directly, permission may have to be sought from other Supreme Court judges. Mr. Pul’s wife wrote to Justice Khehar seeking permission to file an FIR against the judges mentioned in the note. Despite being named himself, the CJI, of his own accord, flouting all concerns of conflict of interest, chose to list the letter as a writ petition (converting an administrative question into a judicial one). Critically, this demonstrated a complete disregard of basic principles of natural justice, and set an example for others to follow.
The other controversial development during Justice Khehar’s tenure was the conviction and subsequent imprisonment of a High Court judge, Justice C.S. Karnan, for contempt of court. Besides criticising the Court’s exercise of its disciplinary powers and contempt jurisdiction, many also deemed the decision unconstitutional for overlooking Parliament’s exclusive privilege to remove a member of the higher judiciary in an act. The root problem of judicial appointments was ignored, as also the question of how certain judges could enter the higher judiciary without adequate scrutiny.
The next CJI was Justice Dipak Misra, whose tenure is remembered for the unprecedented press conference held by his four fellow judges, condemning the CJI’s internal administrative decisions, specifically that court conventions of bench strength and bench composition in the allocation of cases were not being followed, and that the CJI had selectively assigned, without any rational basis, important cases to preferential benches. The trigger was the Brijgopal Harkishan Loya case, the conspiracy theories surrounding his death, and the decision to allocate the matter to a certain Bench contrary to roster and convention.
The issue of the master of roster and conflict of interest also emerged. A Bench led by Justice Misra was hearing a murky CBI case pertaining to bribery around admissions in a debarred medical college, which also involved allegations of attempts to bribe sitting High Court and Supreme Court judges. Separate petitions sought a court-regulated investigation in this case, with a request to list this matter before a Bench other than the CJI’s Bench, for reasons of conflict of interest. Instead of sitting out the case, as propriety and common sense would have demanded, Justice Misra chose to hear these petitions himself, even adjudicating on the scope of the powers of the CJI himself. Ultimately, after lots of twists and turns, the petitions were dismissed with heavy fines, but the debate around conflict of interest within the judiciary was only getting more accentuated.
He was also the first CJI against whom an impeachment motion was proceeded against, although it was eventually quashed by the Rajya Sabha. Despite these controversies, Justice Misra managed to set up the maximum number of constitutional benches as CJI and strove constantly to achieve a balance between adjudication and disposal.
The next CJI, Justice Ranjan Gogoi, also had a controversial tenure. He had been a party to the press conference earlier, and had famously also encouraged “noisy judges” to be more questioning of the system. However, the absolute disregard of conflict of interest took its most prominent turn in his tenure, when Justice Gogoi sat in the hearing (although he did not sign the order) of a sexual harassment complaint made by an employee of the Supreme Court against himself. All principles of natural justice were broken in handling this complaint. Besides the CJI himself constituting a committee for examining the charges, the committee report exonerating the CJI was also not disclosed to the complainant, let alone the public at large. Her grievance was also about unfair dismissal and victimisation, which seems to have not been addressed by the committee. Much later, she was reinstated in service under the next CJI Bobde.
Justice Gogoi was also obsessed with secrecy, and routinely asked for information to be submitted to the court in ‘sealed covers’ (this has since been discontinued with Justice D.Y. Chandrachud’s order denouncing the practice.) This was employed in cases such as the Assam’s National Register of Citizens (NRC) matter, the Rafale dispute, the electoral bonds issue, and so on. In the NRC case, the manner in which the judiciary took over the executive’s role, leaving the citizenship rights of millions under cloud, led commentators to term this as the rise of the ‘executive court’. His treatment of habeas corpus petitions filed from Jammu & Kashmir in the wake of the abrogation of Article 370 prompted an eminent lawyer to say that the “Gogoi Court has, at reckless speed, run a coach-and-four through the centuries-old established law on habeas corpus.” In his tenure, the practice of what some legal scholars describe as ‘judicial evasion’ also grew; the Supreme Court would avoid hearing certain cases altogether, especially those of utmost importance to the nation, such as the electoral bonds case, the Citizenship Amendment Act case, the abrogation of Article 370, etc., or would sit on such cases without passing any orders of consequence.
Justice Gogoi also accepted an appointment as a Member of Parliament (Rajya Sabha) soon after retirement, and fears expressed at the time of Justice Sathasivam’s post retirement appointment resurfaced of increased executive and legislative interference in matters of the judiciary. Already, there was a growing deferential attitude in the judiciary towards the executive. Disturbingly, at about the same time, there was also a tendency towards sycophancy that started among Supreme Court judges, with Justice Arun Mishra and Justice M.R. Shah showering praises on the Prime Minister publicly. Justice Gogoi’s Bench concluded the long-standing Ayodhya dispute, but there appears to be no end in sight to end communal strife, with Gyanvapi, and perhaps even Kashi and Mathura to follow.
Justice Gogoi was followed by Justice Sharad A. Bobde as CJI, who had the longest tenure in the Modi era, clocking in a little over one year and five months. While that gave an opportunity to boldly experiment with technology in the judiciary, it also led to greater subservience on the part of the judiciary towards the government. The practice of judicial evasion that began under Justice Gogoi continued in his term. This period also saw the Court give preferential treatment to certain matters, for example, in the bail matters of journalists Siddique Kappan versus Arnab Goswami.
CJI Bobde’s Bench, in an unprecedented order, also stayed the controversial farm laws, and appointed a committee to examine the issue comprising individuals who had already publicly supported the laws themselves. Justice Bobde will also be remembered for his vocal displeasure of the use of Article 32 petitions as a means of approaching the court, as also attempting to take away the right to adjudicate on COVID cases from High Courts.
Despite these controversial decisions, Justice Bobde made an attempt at judicial reform by issuing guidelines on the appointment of ad-hoc judges to tackle judicial pendency. It is also notable that during his term, not a single appointment was made to the Supreme Court. Justice Bobde was reluctant to recommend Justice Akil Kureshi to the Supreme Court, a respected senior High Court Chief Justice, who had incidentally also issued an order against a high functionary of the government. On the other hand, Justice Nariman was insistent on recommending his name. This led to a standoff within the collegium, and speaks volumes about the so-called independence of the collegium.
The latest Chief Justice to have completed his term in office in this period is Justice N.V. Ramana. Justice Ramana has been the most publicly visible face of the Supreme Court in the modern era. Besides delivering speeches and engaging with the public at large across the country, Justice Ramana has also brought back some of the old glory of the Supreme Court. The institution seems to be the ‘sentinel on the qui vive’ once again. Public confidence in the judiciary has also improved with certain bail orders and stays (e.g., sedition), and the Pegasus inquiry.
That said, his tenure has also seen some judgments from his associate judges seriously undermining civil liberties. The decision on the Prevention of Money Laundering Act, which was in the same vein as the Court’s earlier decision in the Unlawful Activities (Prevention) Act (the Watali case), had the effect of virtually detaining people for an indefinite period, comparable only to the ADM Jabalpur case.
It is pertinent to note that Justice Ramana also filled up all posts in the Supreme Court and made a significantly large number of appointments in the higher judiciary, including appointing many women judges, in a direct move to improve the diversity in the system. Unfortunately, the practice of judicial evasion continued in Justice Ramana’s term, and no constitutional Benches were formed, and neither were important matters taken up.
The Supreme Court today is headed by the 49th Chief Justice of India, Justice U.U. Lalit, who will have a tenure of less than three months. Although it is too early to make any substantial remarks on his tenure, in the short time that he has been in office, Justice Lalit has already shown that the registry can be reformed through improving processes of filing and listing of cases. He has also taken initiatives in the formation of benches and certain initial orders that he has given, e.g., in the Kappan and Setalvad cases, granting bail to individuals where the original indictment itself was without basis. All these developments hold promise for the judiciary, and there is hope that the Supreme Court will live up to its functions of being the true custodian of the Constitution and protector of fundamental rights that it was once meant to be.
In the coming decades, the Supreme Court will continue to face challenges from multiple fronts, particularly the executive. It will also have newer responsibilities of strengthening the Indian judiciary, especially the lower courts, which seem to have faltered in recent times in many respects. A dynamic and thoughtful leadership, supported by puisne judges, should be able to ensure that these challenges and responsibilities are met appropriately. The Supreme Court of India, as also the office of the CJI, will continue to evolve, but hopefully, they will do so in the right direction.