1. The jurisprudence of bail

The Supreme Court has time and again reiterated that “bail is the rule and jail is the exception”

The jurisprudence of bail in post-independent India, is anchored on the bedrock of Article 21 of the Constitution which states that liberty can be deprived only through the procedure established by law, which must be “just, fair and reasonable”. 

Prolonged detention of an accused pending trial may convert the process itself into a punishment rendering a finding of acquittal practically useless as the accused would have suffered much of the punishment by then. This is why grant of bail is fundamentally important.

Grant of regular bail is usually guided by what is referred to as the triple test — the ascertainment of whether the accused is at flight risk; possibility of tampering with the evidence and influencing witnesses.

Abhilash M.R.

The jurisprudence of bail in post-independent India, is anchored on the bedrock of Article 21 of the Constitution which safeguards not only life but also liberty by commanding that liberty can be deprived only through the procedure established by law, which must be “just, fair and reasonable”. The same procedural law which provides for arrest and incarceration, ensures that bail can be sought by an accused through a broad spectrum of provisions ranging from pre-arrest bail to statutory bail. While the former envisaged under Section 438 of the Code of Criminal Procedure (CrPC) enables the accused to approach a Sessions court or High Court seeking a direction to release him on bail in case he is arrested on a non-bailable offence, the latter, as conceived under Section 167 of the CrPC, vests with the accused the right to be released if the investigation is not completed within ninety days or sixty days, as the case may be, depending on the severity of the alleged offence.

The basic presumption

The presumption of innocence is a foundational postulate in India’s criminal jurisprudence. This is the main reason why an accused is usually released on bail pending investigation and trial except for a few offences under the Penal Code as well as offences framed under special statutes like the Unlawful Activities Prevention Act, the Narcotic and Psychotropic Substances Act and the Prevention of Money Laundering Act, all of which impose extremely rigid conditions for the grant of bail.

While bail refers to the conditional release of a person from confinement or custody during investigation and trial, it can also be sought during the appellate stage to prevent endless internment during the pendency of appeal though the benefit of the presumption of innocence is not available at the latter stage. In the ever-enduring words of Justice Krishna Iyer, “The issue of ‘Bail or Jail’ — at the pre-trial or post-conviction stage — although largely hinging on judicial discretion, is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.” (Gudikanti Narasimhulu vs Public Prosecutor (1977)).

Grant of bail as the rule

A common misnomer that precipitates public apprehension is the perception that jail is and ought to be a necessary consequence of arrest and the failure to jail an accused post-arrest endangers public justice. In fact, prolonged detention of an accused pending trial may convert the process itself into a punishment rendering a finding of acquittal practically useless as the accused would have suffered much of the punishment by then. Unless bail is granted to an accused who is presumed to be innocent in the eyes of the law until guilt is proven, he may not be able to take the necessary steps lawfully permissible to defend himself. The Supreme Court has time and again reiterated that “bail is the rule and jail is the exception”.

A conjoint reading of Section 436 (bailable offences)and 437 (non-bailable offences) of the CrPC makes it clear that the wisdom of the legislature is to secure bail as the rule and jail as the exception. Such an understanding reflects the legal lineage which can be traced back to the verdict of the Allahabad High Court in Emperor vs H. L. Hutchinson (1932), wherein the trade unionists who were accused to have conspired against the empire were granted bail on the basis of the aforesaid principle. This principle has been consistently reaffirmed by the Supreme Court in a catena of decisions including the constitution bench decision in Gurbaksh Singh Sibbia (1980).

The CrPC defines “bailable offence” as an offence which is shown as bailable in the First Schedule of the CrPC , or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence. While bail is a matter of right in bailable offences, in non-bailable offences, the grant of bail is at the discretion exercised by the judge taking note of the factual aspects of the case. It was held by the Calcutta High Court in 1923 “ that the discretionary power of the Court to admit to bail is not arbitrary, but is judicial”, and “is governed by established principles.”(Nagendra vs King Emperor).

Judicial discretion and its requirements

As declared by the Supreme Court, “the grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.” (Sanjay Chandra vs CBI (2011)). In practice, the notion of judicial discretion remains circumscribed by the judicial pronouncements of superior courts.

However, a cryptic judicial order sans ratiocination is unhealthy as it endangers not only liberty but also law. The application of the mind is a necessary pre-requisite of a sound judicial order.

In 2022, the Supreme Court derided the recent tendency of granting or refusing bail through terse orders by observing that “reasoning is the life blood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system. A non-reasoned (cryptic) order suffers the vice of arbitrariness.”(Ms. Y versus State of Rajasthan & Ors.(2022)).

The triple test

The grant of regular bail is usually guided by what is referred to as the triple test — the ascertainment of whether the accused is at flight risk; possibility of tampering with the evidence and influencing witnesses. In addition to the above three, it was held by a three-judge-bench of the Supreme Court (P. Chidambaram Case (2019)) that the gravity of the offence may also be an additional consideration which may be ascertained by the sentence prescribed for the offence alleged to have been committed.

Despite multitude of declarations of the apex court, one is left surprised that there are numerous instances of courts of law violating the legal principles declared by the Supreme Court and resorting to verdicts beyond reason and comprehension. The right to personal liberty as manifested in Article 21 will remain elusive as long as institutional attitudes remain stymied by such perverse considerations.

2. Explaining Pakistan’s flip-flop on trade with India

The shadow of politics still looms over trade, which runs contrary to Islamabad’s statements on the need for better ties

On March 31, 2021 Pakistan’s new Finance Minister Hammad Azhar, announced Pakistan’s Economic Coordination Committee (ECC)’s decision to import cotton, yarn, and 5,00,000 metric tons of sugar from India.

For the textile and sugar industries in Pakistan, importing from India is imperative, practical and is the most economic. According to the latest Pakistan Economic Survey, 2019-20, cotton and sugarcane production declined by 6.9% and 0.4%, respectively.

However, Pakistan keeps emphasising on the Jammu and Kashmir issue to make any meaningful start in bilateral relations. This shows the supremacy of politics over trade and economy, even if the latter is beneficial to the importing country. For the Pakistan cabinet, the interests of its own business community and its export potential have become secondary.

Pakistan’s Finance Minister Miftah Ismail stated that the government may consider importing vegetables and other edible items from India following the destruction of standing crops due to the massive floods in the region. This comes after three years when Islamabad downgraded trade ties with New Delhi over the Kashmir issue. In this article published on April 9, 2021, D. Suba Chandran explains how Pakistan always keeps politics above trade even when they are facing an industry shortage.

Pakistan’s double U-turn on resuming trade with India highlights the internal differences within Ministries, between business and political communities, and the emphasis on politics over economy and trade. It also signifies Pakistan cabinet’s grandstanding, linking normalisation of ties with India to Jammu and Kashmir.

On March 31, Pakistan’s new Finance Minister Hammad Azhar, announced Pakistan’s Economic Coordination Committee (ECC)’s decision to import cotton, yarn, and 5,00,000 metric tons of sugar from India. The media dubbed it as a political breakthrough but the ECC’s decision was not on bilateral trade; it was about importing only three items — cotton, yarn and sugar.

Mr. Hammad Azhar, whose Ministry proposed the idea, accepted the cabinet’s decision as the working of “economic and political interface in a democracy”, and it was left with the Prime Minister and the cabinet to “endorse, reject or modify” the ECC’s proposals. However, Pakistan’s textile industry has not taken the cabinet’s decision kindly; for them, importing cotton yarn from India is an immediate need; else, it would impact their export potential.

Three takeaways can be identified from the above. The first relates to the ECC’s decision to import only three items from India, namely cotton, yarn and sugar. It was based on Pakistan’s immediate economic needs and not designed as a political confidence-building measure to normalise relations with India.

Practical and economic

For the textile and sugar industries in Pakistan, importing from India is imperative, practical and is the most economic. According to the latest Pakistan Economic Survey, 2019-20 , though the agriculture sector witnessed a growth of 2.67% (with an increase in rice and maize production), cotton and sugarcane production declined by 6.9% and 0.4%, respectively. Sugar exports came down substantially last year, by over 50% in 2019-20, when compared to 2018-19. Yarn, cotton cloth, knitwear, bedwear and readymade garments form the core of Pakistan’s textile basket in the export sector. By February 2020, there was a steep decline in the textile sector due to disruptions in supply and domestic production. When compared to the last fiscal year (2019-20), there has been a 30% decline (2020-21) in cotton production.

According to State Bank of Pakistan’s latest quarterly report , the decline in cotton production is also due to fewer areas (the lowest since 1982) of cotton cultivation. By the end of 2020, there was a sharp decline (around 40%) in cotton production. Besides the decline in the area of cotton cultivation, there was also a decline in yield per acre. The ginning industry estimates that in 2021, it would receive less than half of what was projected. In 2019-20, Pakistan produced around nine billion bales; this year, the ginning industry estimates only around seven million bales. This would mean, Pakistan’s cotton export would reduce, creating a domino effect on what goes into Pakistan’s garment industry. Pakistan is the fifth-largest exporter of cotton globally, and the cotton-related products (raw and value-added) earn close to half of the country’s foreign exchange.

Another industry in crisis

The sugar industry in Pakistan is also in crisis. When compared to cotton, the sugar industry’s problem stem from different issues — the availability for local consumption and the steep price increase. The sugar industry has prioritised exports over local distribution. Increased government subsidy and a few related administrative decisions resulted in the sugar industry attempting to make a considerable profit by exporting it. By early 2019, the sugar prices started increasing, and in 2020, there was a crisis due to shortage and cost.

As a result, importing sugar from India would be cheaper for the consumer market in Pakistan. Clearly, the crises in cotton and sugar industries played a role in the ECC’s decision to import cotton, yarn and sugar from India. It would not only be cheaper but also help Pakistan’s exports. This is also imperative for Pakistan to earn foreign exchange.

Politics first

The second takeaway from the two U-turns — is the supremacy of politics over trade and economy, even if the latter is beneficial to the importing country. For the cabinet, the interests of its own business community and its export potential have become secondary. However, Pakistan need not be singled out; this is a curse in South Asia, where politics play supreme over trade and economy. The meagre percentage of intra-South Asian Association for Regional Cooperation (SAARC) trade and the success (or the failure) of SAARC engaging in bilateral or regional trade would underline the above. Trade is unlikely to triumph over politics in South Asia; especially in India-Pakistan relations.

The Kashmir link

The third takeaway is the emphasis on Jammu and Kashmir by Pakistan to make any meaningful start in bilateral relations. This goes against what it has been telling the rest of the world that India should begin dialogue with Pakistan. Recently, both Pakistan’s Prime Minister and the Chief of Army Staff, Qamar Javed Bajwa, were on record stating the need to build peace in the region. Gen. Bajwa even talked about “burying the past” and moving forward. There were also reports that Pakistan agreeing to re-establish the ceasefire along the Line of Control (LoC) was a part of this new strategy. The latest statement by Pakistan’s cabinet that unless India rescinds the decision of August 5, 2019 in Jammu and Kashmir, there would be no forward movement, goes against what Mr. Imran Khan and Gen. Bajwa have been stating in public. This position also hints at Pakistan’s precondition (revoking the August 2019 decision on Jammu and Kashmir) to engage with India. Pakistan has been saying that the onus is on India to normalise the process. Perhaps, it is New Delhi’s turn to tell Islamabad that it is willing, but without any preconditions, and start with trade. It may even allow New Delhi to inform Pakistan’s stakeholders about who is willing to trade and who is reluctant.

3. Tribe categorisation work delays benefits under SEED

Exercise on since its launch in February to include 1,400 communities under SC, ST and OBC for scheme benefits

Till 8 p.m. on Monday, the Union Social Justice Ministry received 402 applications online from across the country for benefits under the Scheme for Economic Empowerment of Denotified, Nomadic, Semi-nomadic (SEED) Tribes. More than 10 crore Indians from 1,400 communities belong to these groups, show the latest estimates available with the government.

None of the applications received so far on the SEED’s online portal has been approved yet. Multiple officials say the exercise to categorise all 1,400 communities under the Scheduled Caste, Scheduled Tribe and Other Backward Classes is holding up the implementation of the scheme, unveiled in February by Social Justice Minister Virendra Kumar.

Welfare options

The scheme aims to provide free competitive exam coaching to students, health insurance and financial assistance for housing and uplift clusters of these communities through livelihood initiatives. The Ministry has been allocated ₹200 crore for this scheme to be spent over five financial years from 2021-22 to 2025-26.

At the time of the launch, the Ministry announced that the scheme would be implemented through an online portal that would issue a unique ID to each applicant to apply and track the status of the application online.

Of the applications received on the portal so far, 17 are for free coaching, 111 for health insurance, 222 for housing, and 52 for livelihood assistance, the Ministry said.

The applications are still being reviewed at the State and district levels, officials said.

While the Anthropological Survey of India (AnSI) and Tribal Research Institutes are studying 267 uncategorised communities to classify them under SC, ST, or OBC, inconsistencies have been hindering the processing of SEED applications. The categorisation of these communities by the Idate Commission left room for inaccuracies as outlined by the commission in its 2018 report.

For instance, some communities such as the Banjara were under the SC list in Delhi, the ST list in Rajasthan and the OBC list in Uttar Pradesh.

The commission said some communities were under different lists in different districts even within a State.

NITI Aayog officials monitoring the exercise told The Hindu, “The AnSI is expected to submit reports on all the communities by October.”

Government officials said the categorisation of DNTs, NTs and SNTs is essential for the implementation of SEED because there is no schedule in the Constitution providing for their reservation. “So, we are asking State governments to uniformly categorise these communities under SC, ST, or OBC lists and then provide a sub-categorisation in their certificates, declaring them as either DNT, NT, or SNT,” an official said.

Scheme for Economic Empowerment of DNTs (SEED)

The Minister of Social Justice and Empowerment has launched the Scheme for Economic Empowerment of De-notified, Nomadic, and Semi Nomadic Communities (SEED).

Who are the DNTs?

• The term ‘De-notified Tribes’ stands for all those communities which were once notified under the Criminal Tribes Acts, enforced by the British Raj between l87l and I947.
• These Acts were repealed after Independence in l952, and these communities were “De-Notified”.
• The DNTs (of whom most are the medieval period Banjaras) are the most neglected, marginalized, and economically and socially deprived communities.
• Most of them have been living a life of destitution for generations and still continue to do so with an uncertain and gloomy future.

SEED Scheme

• Under the scheme, the government seeks to provide free coaching to students for civil services examinations, competitive exams for admission to professional courses; health insurance; livelihood support and housing.
• It has been formulated for families having income from all sources of Rs.2.50 lakh or less per annum and not availing any such benefits from similar Scheme of Centre Government or the State Government.
• The Scheme will be implemented through a portal, developed by the Department of Social Justice & Empowerment.
• Post verification, the funds will be transferred directly to the beneficiaries in their account.
• The other implementing agencies are Ministry of Rural Development, National Rural Livelihood Mission (NRLM) and National Health Authority (NHA).

Components of the scheme

The Scheme will have the following four components:

[I] Free Coaching

• A component of free Coaching for DNT Students has been envisioned for the educational empowerment of these communities.
• The objective of this component is to enable them to appear in competitive examinations/ admission to professional courses like medicine, engineering, MBA, etc for obtaining an appropriate job in the Public/Private Sector.
• The selection of the candidates for each course will be based on system generated merit list through the portal.
• Approximately, 6250 students will be provided free coaching under this component in five years. The total funds spent in the five years will be Rs.50 crore.

[II] Health Insurance

• Members of these communities are likely to have little or no access to medical facilities and other benefits available under the mainstream health policies.
• The primary objective of the scheme is to provide financial assistance to National Health Authority (NHA) in association with State Health Agencies (SHAs).
• These agencies will provide a health insurance cover of Rs.5 lakhs per family per year for families as per norms of “Ayushman Bharat Pradhan Mantri Jan Arogya Yojana.

 [III] Livelihood Initiatives

• The decline of traditional occupations of DNT/NT/SNT communities has exacerbated their poverty.
• A focus to support livelihood generation for these communities is required.
• The primary objective of the scheme is to provide financial assistance to National Rural Livelihood Mission (NRLM).
• It would enhance productivity growth in key livelihood sectors for employment generation through investments in institutional support, technical assistance.

[IV] Financial support for Housing

• Considering the shortage of houses for DNTs, it has been proposed to earmark a separate outlay for PMAY to support specific importance in providing houses only for DNTs living in rural areas.
• It is for those who have not taken benefit of the Pradhan Mantri Awas Yojana as SC, ST, OBC and are living below the poverty line.
• The admissible support is Rs 1.20 lakhs in plains and 1.30 lakhs in hilly areas (per unit assistance).

Why need such a scheme?

• DNTs escaped the attention of our developmental framework and thus are deprived of the support unlike Scheduled Castes and Scheduled Tribes.
• Historically, these communities never had access to private land or homeownership.
• These tribes used forests and grazing lands for their livelihood and residential use and had “strong ecological connections.
• Many of them are dependent upon various types of natural resources and carve out intricate ecological niches for their survival.
• The changes in ecology and environment seriously affect their livelihood options.

4. Editorial-1: There are no easy answers to the freebies issue

The presumption that parties are oriented towards short-termism without any thought for the future may be incorrect

When the then Tamil Nadu Chief Minister M.G. Ramachandran launched his now-famous mid-day meal scheme in 1982, it met with opposition both within his own party, the All-India Anna Dravida Munnetra Kazhagam (AIADMK), and the Opposition. Within the party, there were concerns that it would result in leakages and corruption. The Opposition said it was intended mostly to bolster his personal image among the poor.

Parents saw merit in sending their children regularly to school. As a result, attendance at schools shot up. The benefits thus went beyond the immediate objective of providing adequate nutrition to children.

Merit versus non merit

The success of the scheme illustrates a broader point. It is hard to capture the total welfare effects of a given scheme at the outset and, therefore, hard to evaluate the merit of a given freebie (a word used to describe subsidised consumption). Bicycles for children may look like a cheap electoral bribe. But those familiar with rural areas would know that poor transport is a serious obstacle to attending school or college. Television sets may not be about recreation, they could be vehicles for imparting useful information or they could simply bring the family together, both of which have wider benefits for society.

Economists make a distinction between ‘merit’ goods and ‘non-merit’ goods. Merit goods, such as education and health care, have positive externalities, that is, the public benefit exceeds the private benefit. Such goods are worth subsidising. Not so ‘non-merit’ goods.

But what is ‘merit’ or ‘non-merit’ is not always readily discernible. With their acute appreciation of grassroots realities, politicians often have a better understanding than economists do of the ‘merit’ underlying certain freebies. They have a much better grasp of what it takes to change the lives of the disadvantaged or to bring about social transformation

Court’s intervention

These considerations seem to underlie the Supreme Court of India’s decision to refer the matter of freebies to a three-judge Bench instead of to a panel of experts as indicated earlier. During the hearings, the then Chief Justice of India, N.V. Ramana, remarked, “A shaving kit for a barber, a bicycle for a student, equipment for a toddy tapper or an iron for a washerman change their lifestyle and uplift them… That is why, sorry to say, you elite lawyers cannot understand.” How true.

The Supreme Court has framed four questions for the three-judge Bench: What is the scope of judicial intervention? What should be the composition of the expert panel to examine the issue? Can the court pass any enforceable order? Does S. Subramaniam Balaji vs Government of Tamil Nadu and Others (2013) need reconsideration?

In its ruling in S. Subramaniam Balaji vs Government of Tamil Nadu and Others, the Supreme Court of India provided an emphatic answer to the third question and it also partially addressed the first question. The case arose out of the Dravida Munnetra Kazhagam government’s election promise of colour TV sets for a specified group of individuals in 2006 and the decision of the AIADMK government in 2011 to distribute goodies such as blenders, grinders, electric fans, etc.

The Court addressed the argument that freebies are unproductive expenditure and hence must be frowned upon. The Court remarked, “Whether the State should frame a scheme, which directly gives benefits to improve the living standards or indirectly by increasing the means of livelihood, is for the State to decide and the role of the court is very limited in this regard.”

The top court’s observations on the specific issue of whether the distribution of blenders, grinders, fans, mangalsutras, etc. is a desirable form of expenditure are worth quoting at length. “The concepts of livelihood and standard of living are bound to change in their content from time to time. It is factual that what was once considered to be a luxury has become a necessity in the present day…. Hence, … largesse in the form of distribution of colour TVs, laptops, etc. to eligible and deserving persons is directly related to the directive principles of the State policy… Judicial interference is permissible when the action of the government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for the good of the State.”

Should the Supreme Court be issuing guidelines on a matter such as freebies? The Court observed that guidelines such as the Vishakha guidelines on sexual harassment could be issued where there was a legislative vacuum in respect of an issue. There was no such vacuum with respect to freebies: The Representation of the People Act dealt adequately with corrupt practices on the part of political parties.

Public finances and a cap

It does appear that the crucial questions on freebies have been answered substantially. However, in the present petition, a new issue has been posed, namely, the potential for freebies to undermine public finances. What is to stop a political party from promising freebies left, right and centre in order to get elected and leaving behind a bankrupt economy? That seems to be the motivation for having a three-judge Bench revisit S. Subramaniam Balaji.

The Supreme Court faces difficult questions. How do you rein in expenditure choices that are not responsible? Who makes the judgment on whether political parties are being responsible enough? Duvvuri Subbarao, former Governor of the Reserve Bank of India, has proposed a cap on freebies, suitably defined. Alas, political parties will find a way around caps on freebies just as they have found ways around caps on the fiscal deficit. Moreover, it is hard to argue that freebies are the sole or even primary cause of fiscal imbalances. There is no assurance, therefore, that a cap on freebies will mean a return to overall fiscal prudence.

It is also incorrect to suppose that political parties are entirely oriented towards short-termism and will indulge in spending without any thought for the future. Political parties view themselves as going concerns that are in the game for the long haul. They are unlikely to take decisions that will wreck an economy and discredit them in the eyes of the electorate forever.

About growth and equity

Lastly, the issue is not expenditure on freebies per se but the choice of productive versus unproductive expenditure. It is all very well to say that we should be investing in job creation instead of blowing up scarce funds on freebies. But jobs in industry or services go to the relatively privileged, that is, those who have access to education and the means to afford it. A big chunk of freebies goes to those who will not be able to access the jobs created by productive expenditure.

So, how much to spend on freebies relative to productive expenditure is also a question of growth versus equity. It is a question that can be answered ultimately only by the electorate. They will do so by voting to power parties that they think have got the balance right. We may have no choice but to rely on democratic accountability to address the issue of freebies.

5. Editorial-2: Curing the patriarchal mindset of the legal system

Inclusion of feminist jurisprudence in the law curriculum and a sensitisation of legal practitioners must be considered

A sessions court in Kerala, while granting anticipatory bail recently to an author and social activist in the State in a case of alleged sexual harassment, observed that the offence under Section 354A of the Indian Penal Code (‘Assault or criminal force to woman with intent to outrage her modesty’) is not prima facie attracted when the de facto complainant was dressed in ‘sexually provocative dresses’. (The Kerala High Court has since stayed the order of the sessions court). The sessions court had relied on photographs submitted with the bail application of the accused showing that the de facto complainant was wearing a dress that was ‘sexually provocative’ and hence, Section 354A would not be used against the accused. The observation was clearly an affront to a woman’s constitutional right to dignity, life and personal liberty, and privacy.

The ratio decidendi proclaimed by the sessions court judge is a (patriarchal) Freudian slip. In psychoanalysis, a Freudian slip is defined as an error in speech, memory or action that occurs due to the interface of an unconscious subdued wish or internal train of thought. Terming a woman’s dress as ‘sexually provocative’ is a result of the objectification of woman as an erotic quiddity. In this case, it is an unwitting sparking of a patriarchy that affected not only the individual judicial officer but also the entire socio-legal system.

The Supreme Court in Aparna Bhat vs The State Of Madhya Pradesh (2021) had held that “the use of reasoning/language which diminishes the offence and tends to trivialize the survivor [in gender violence cases] is especially to be avoided under all circumstances. Thus, the following conduct, actions or situations are deemed irrelevant, e.g. – to say that the survivor had in the past consented to such or similar acts or that she behaved promiscuously, or by her acts or clothing, provoked the alleged action of the accused, that she behaved in a manner unbecoming of chaste or ‘Indian’ women, or that she had called upon the situation by her behavior, etc. These instances are only illustrations of an attitude which should never enter judicial verdicts or orders or be considered relevant while making a judicial decision; they cannot be reasons for granting bail or other such relief.” The controversial comment of the sessions court judge is a clear violation of the guideline given by the Supreme Court of India.

A struggle for women

The award-winning author, Githa Hariharan, in her introduction to Justice K. Chandru’s book, Listen to My Case: When Women Approach The Courts of Tamil Nadu (it tells the stories of 20 women and their fight for justice), has pointed out that the process of going to court is hard for women; it is even harder when women do not have financial or emotional support from their family, custom or the present reading of the law. The representation of women in the Indian judiciary too is poor. For example, in March this year, Justice Indira Banerjee, the senior-most woman judge in the Supreme Court, highlighted how the top court (since its inception in 1950) has seen only 11 women judges. “The inclusion of women in the judiciary would ensure that the decision-making process is more responsive, inclusive and participatory at all levels.” But this is only a dream. In the existing unsatisfactory jural environment, the occasional escape of the patriarchal cat from the judiciary’s bag is quite expected.

For women, ensuring human dignity is still a broken promise. In Bradwell vs The State [of Illinois] (1872), the Supreme Court of the United States held that ‘god designed the sexes to occupy different spheres of action and that it belonged to men to make, apply, and execute laws — and regarded it as an axiomatic truth’. The fact of the case was that Myra Bradwell, residing in the State of Illinois, made an application to the judges of the Supreme Court of that State for a licence to practise law. The Supreme Court denied her the permission and was of the opinion that “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator”. Is this antediluvian attitude that women are the children of a lesser god, still ruling the judicial roost in India?

Need for sensitisation

A remedial measure to cure the patriarchal mindset of the socio-legal system would be the inclusion of feminist jurisprudence in the curriculum for law students and a sensitisation of legal practitioners and judicial officers about feminist jurisprudence.

The Stanford Encyclopedia of Philosophy says: “Feminist philosophy of law identifies the pervasive influence of patriarchy and masculinist norms on legal structures and demonstrates their effects on the material conditions of women and girls and those who may not conform to cisgender norms. It also considers problems at the intersection of sexuality and law and develops reforms to correct gender injustice, exploitation, or restriction. To these ends, feminist philosophy of law applies insights from feminist epistemology, relational metaphysics and progressive social ontology, feminist political theory, and other developments in feminist philosophy to understand how legal institutions enforce dominant gendered and masculinist norms… Feminist legal philosophy is an effort to examine and reformulate legal doctrine to overcome entrenched bias and enforced inequality of the past as it structures human concepts and institutions for the future.” Understanding the legal conundrums with the assistance of feminist jurisprudence would definitely help us debunk the patriarchal delusions of grandeur.

Individual’s choice

Choice of dress is an integral part of an individual’s freedom of privacy and dignity. Judging a person’s dress is not the business of a judge; nor is the dressing style of a woman, a licence to outrage her modesty. In a liberal democratic state, choice of dress is a ‘self-regarding act’ over which the individual is sovereign as J.S. Mill pointed out. In 1583, King Henry III of France decreed that fabrics such as velvet, satin and damask to be limited to the elite class. The king stressed that god was angry because he could not recognise a person’s status from his clothes. As Britannica says, a similar royal order was issued by King Edward IV of England in 1463 stating that God was displeased by excessive and inordinate apparel. In 1429, Joan of Arc adopted male clothes; this wearing of male attire was among the charges against her when she was tried by the Bishop of Beauvais, as donning male attire was contrary to the modesty of women and prohibited by divine law.

A judge of the Indian Republic who is committed to the trinity of liberty, equality and fraternity, should not be a reincarnation of Henry III, Edward IV or the Bishop of Beauvais.

6. Editorial-3: Challenges of sub-national fiscal correction

The Centre and States need to prioritise expenditure and adhere to fiscal discipline

Recent concerns over excessive doling out of freebies by States are often interpreted as intrusion into the federal powers of the States. States push back on this issue on the grounds of welfare provisioning and protection of the vulnerable sections of the population. The Central government’s alarm has been on the mounting debt burden and the deteriorating fiscal situation in some States. As both the Union government and States are expected to work closely in a co-operative federal structure, frictions arising out of these exchanges might have repercussions on both resource sharing and expenditure prioritisation. Hence, it is important that the Centre and States are on the same page on these issues.

In recent times, three issues have emerged as major discussion points in India’s fiscal federalism, leading to back-and-forth exchanges between the Centre and States. First are a set of issues related to Goods and Services Tax (GST) such as the rate structure, inclusion and exclusion of commodities, revenue sharing from GST and associated compensation. Second, State-level expenditure patterns especially related to the welfare schemes of States. Third, the conception and the implementation of central schemes.

Issues related to GST have a forum for discussions as they are usually the agenda for GST council meetings. However, other two matters are generally flagged by the Finance Ministry based upon reports and studies done by the Reserve Bank of India (RBI) and the Comptroller and Auditor General of India. As States engage in clarifications on these reports and studies, it often ends up as exchanges of shifting the blame, especially when the Centre and the concerned State have different political parties in power.

Discretionary expenditure

A key issue of recent debates between the States and the Centre is the quantity and quality of public expenditure by the States. In this context, it is important to distinguish between two kinds of public expenditure. Mandatory spending is expenditure that is governed by formulas or criteria set forth, rather than by periodic appropriations and as such, unless explicitly changed, the previous year’s spending bill applies to the current year for these items of expenditure. By contrast, discretionary spending is expenditure that is governed by annual or other periodic appropriations. While States demand more fiscal space for increasing discretionary spending, the Centre is pushing for more fiscal discipline by reducing the scope for discretionary spending and limiting States to focus on mandatory expenditures.

Generally, the aim of enhanced discretionary public expenditure is to stimulate the economy during periods of excess slack, as government spending multipliers would be high and work primarily through consumption channel. Discretionary expenditure is, at the same time, more volatile than mandatory expenditure. Cross country empirical evidence also shows that discretionary expenditure is not contemporaneously correlated with output growth and the correlation is low for the next immediate time period. Further, once started, some of the discretionary expenditure, used to increase demand in the economy, continues for longer periods leading to fiscal stress. This is because of the fact that it is hard to decrease government spending, especially on expenditure heads that raise private consumption, as it requires some counter balancing measures to deal with the resistance from the public.

The current debate around freebies needs to be viewed in this larger context of sub-national fiscal consolidation. In a federal system, States’ fiscal stress gets spilled over to the Centre, leading to a situation of overall magnified fiscal slippages. As the economy is recovering from crisis, there exists a need to adhere to the path of fiscal correction both by the Centre and by the States, as a crisis demands more discretionary spending than normal times. Such additional expenditures need not be and cannot be sustained over longer periods. However, in the Indian context, many States indulge in higher levels of expenditures towards maintaining what they call as their ‘models of welfare provisioning’. While these models claim to have their own merits, the effects of such expenditures on growth of the economy and well-being of the beneficiaries are ambiguous as there is a lacuna of credible evidence.

Fiscal consolidation

Sustained increase in welfare expenditure by the States leads to fiscal expansion, which necessitates additional resource mobilisation. When efforts towards additional resource mobilisation yield limited success, as in the case of many States in India, the States resort to borrowings. Fiscal expansion financed through debt and the resultant debt accumulation have important impacts on the economy both in the short run as well as in the long run. While debt per se might not be bad, the utilisation of funds raised through borrowings is important, that is, if it is used for capital formation, it could contribute to the real income of future generations and add to repayment capacity of the government as well. On the contrary, if use of borrowings is to finance only the current expenditure, it poses the risk of debt rising to unsustainable levels.

Data published by the RBI show that in recent years, States’ outstanding debt has registered an upward movement. This could be partly attributed to the implementation of the Ujwal DISCOM Assurance Yojana (UDAY), farm loan waivers, sustained increase in populist welfare measures and growth slowdown especially in 2019-20. A combination of increased expenditure and non-commensurate revenue mobilisation efforts has resulted in increased debt-GSDP ratio (gross state domestic product) between 2013 and 2022. The debt-GSDP ratio of States increased from 22.6 in 2013 to 25.1 in 2018, and further to 31.2 in 2022 (budget estimates).

Given the prevailing macroeconomic environment, the debt-GSDP ratio is expected to increase further. This rising trend in debt-GSDP ratio needs to be seen in the context of revenue mobilisation efforts of the States. Overall, there is a decline in revenue receipts due to a fall in the States’ own tax revenue. With dwindling revenue receipts, many States had to opt for expenditure compression to adhere to the fiscal responsibility legislation target.

This scenario underscores the importance of fiscal correction at the State level. While there exists a need for raising additional resources at the sub-national levels, expenditure prioritisation has to be carried out diligently. Discussions on freebies need to be understood in this context of squeezing of development expenditure and capital expenditure on some important social and economic services. The Centre, too, on its part needs to demonstrate commitment to fiscal discipline by sticking to announced fiscal glide path to ensure the sustainability of a frictionless co-operative federal structure.