The sexual harassment accusation against the Chief Justice of India (CJI), Ranjan Gogoi, may or may not finally stick, but the way the issue was handled certainly leaves a whiff of something amiss. Neither the CJI nor the bench he constituted on the matter did themselves proud.
On Saturday (20 April), the Chief Justice called an extraordinary special hearing to discuss something involving “great public importance” which could have a bearing on the “independence of the judiciary”. It ended up being an emotional and indirect denial by him of any misconduct with a former woman employee of his office. He did not announce any ruling at the end of the hearing, but allowed two brother judges on the same bench (Justices Arun Mishra and Sanjiv Khanna) to close the hearing with a bland statement that they will not pass any order. And yet, they requested the media to remove the objectionable content carrying the accusations of the former employee.
CJI Gogoi made at least five major mistakes. First, a bench hearing an accusation against him cannot have him as the head, even assuming the CJI is the master of the roster and thus empowered to constitute such a bench. That he did not recuse himself when the bench wrote its non-order, but merely let Justice Mishra formally issue a statement is not good enough. Clearly, the Supreme Court, which was at the forefront of the Visakha guidelines on sexual harassment, failed when judging its own head this time. The brother judges effectively did not take independent action, even though they could have done so to redeem the court’s reputation.
Second, CJI Gogoi suggested that the accusation against him came at a time when several important cases and the elections were underway. “I don’t think this can be a plot of a junior assistant. There is a bigger plot. They want to deactivate the office of the CJI.” While we need not dismiss this argument as self-serving, a mere statement by someone alleging a conspiracy against him will not be by any court, even if that someone happens to be the CJI. If he has at least some proof of the conspiracy, he should have filed his complaint separately and asked the government or the investigative agencies to look into the matter before claiming the same in open court in a bench headed by him. Again, this did not make sense. He, however, finds support from Finance Minister Arun Jaitley.
Third, the CJI connected two unconnected facts. He disclosed that his bank account had only Rs 6.8 lakh as balance, and hinted that since they could not fix him by showing he had untold wealth, “they” have brought the sexual harassment allegation against him. This is a dubious linkage. A CJI may be absolutely incorruptible, but that does not automatically suggest that he is incapable of misconduct with women or immune to other kinds of crimes.
Fourth, the CJI suggested that the woman had a “criminal background” and that two FIRs had been filed against her. These may well be true, but again this amounts to misuse of his stature and position. In a sense the CJI is the accused here, and he sits in the powerful chair, not the woman. Any person in a power relationship with a junior employee has thus to be doubly careful about how he deals with the person if the latter accuses him of misconduct. By trying to cast doubts on her antecedents, the CJI did not do the right thing.
Fifth, the CJI was one of the four Supreme Court judges who addressed a joint presser in January 2018 alleging that the previous CJI, Dipak Misra, was arbitrarily assigning cases to specific benches, and that the CJI was merely the first among equals, not the judiciary’s boss. But CJI Gogoi has done nothing to overturn the power of the office, nor made even procedural changes to make the system of assigning cases any less arbitrary. That he himself headed the bench to defend himself against the charges made by a former junior assistant shows that he has not addressed the central issue of conflicts of interest.
The CJI may or may not be the victim of a conspiracy, but if he has done nothing wrong, he had nothing to fear from an independent investigation. He did not do his reputation any good by doing what he did. Now, every action of his, every judgement he delivers, will be scrutinised closely.
What does Clause 6 say? Clause 6 of the Assam Accord, which was signed in 1985 after the Assam Agitation of 1979-85, envisages that appropriate constitutional, legislative and administrative safeguards should be provided to protect, preserve and promote the cultural, social, linguistic identity and heritage of the people of Assam.
What is Assam Accord? The Assam Accord (1985) was a Memorandum of Settlement (MoS) signed between representatives of the Government of India and the leaders of the Assam Movement in New Delhi on 15 August 1985.
The accord brought an end to the Assam Agitation and paved the way for the leaders of the agitation to form a political party and form a government in the state of Assam soon after. As per the Accord, those Bangladeshis who came between 1966 and 1971 will be barred from voting for ten years.
The Accord also mentions that the international borders will be sealed and all persons who crossed over from Bangladesh after 1971 are to be deported. Though the accord brought an end to the agitation, some of the key clauses are yet to be implemented, which has kept some of the issues festering.
WHAT IS THE CITIZENSHIP AMENDMENT BILL 2016? The Citizenship Amendment Bill 2016 seeks to allow illegal migrants from certain minority communities in Afghanistan, Bangladesh and Pakistan eligible for Indian citizenship. In other words, it amends the Citizenship Act of 1955. The Bill provides that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violate any law.
WHAT DOES IT WANT? The Citizenship Amendment Bill seeks to allow illegal migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities coming from Afghanistan, Bangladesh or Pakistan to not be imprisoned or deported. It also appeals for the minimum years of residency in India to apply for citizenship to be lessened from at least 11 to six years for such migrants. The Bill, however, does not extend to illegal Muslim migrants. It also does not talk about other minority communities in the three neighbouring countries, such as Jews, Bahais etc.
Background: Tiktok has already been banned in neighbouring Bangladesh and hit with a large fine in the United States for illegally collecting information from children. The app, which claims to have 500 million users worldwide including more than 120 million in India, has been fighting the effort to shut it down after a high court in Chennai called for the ban on 3 April.
What necessitated this and can the ban be justified? The case was launched by an activist group which said the app encouraged paedophiles and pornography. The ban assumes that only a few platforms are a source of the problem and ignores the fundamental nature of the internet. The internet is not just Facebook or TikTok or WhatsApp. There are several other websites where people can go and find some of the most horrible content and then share it to the other platforms. To single out one app as a source of the problem as has happened with TikTok is worrying.
The TikTok ban also raises questions about the future of tech policy in India. The Ministry of Electronics and Information Technology (MeITY) is already working on new rules for intermediaries, which would put a lot more onus on companies to monitor content beforehand, and assumes that automated monitoring and AI will solve the problem.
What needs to be done? The best way to protect users, especially children, is to empower them with information. Time is indeed nigh for legislation specifically protecting the interests of young users, it is also important for policymakers and internet companies to create education materials targeted at children and their parents. To begin with, the government must make the safe use of the internet a part of the school and college course curricula.
Way ahead: TikTok is not the only internet company to be lethargic in acting on complaints, Twitter and Facebook have been slow to act as well, aside from doing little to help law enforcement in cracking down on crime. If such companies value their users and wish to retain them, they should start being proactive in dealing with harmful behaviour on their sites.
Where does the EC derive its powers and what is its extent? Article 324 says the superintendence, direction and control of all elections to Parliament, the State legislatures, and the offices of the President and Vice-President shall be vested in the EC. The Article has been interpreted by courts and by orders of the EC from time to time to mean that the power vested in it is plenary in nature. In other words, the EC can take any action it deems fit to ensure that elections and the election process are free and fair.
Has the EC always been a multi-member body? No, the Election Commission was a single Chief Election Commissioner for decades since the body was set up in 1950 based on the provisions of the Constitution. It was on October 16, 1989, that two more Election Commissioners were appointed to expand the panel’s composition. Their tenure ended in 1990. Thereafter, two Election Commissioners were appointed in 1993. Since then, the EC has been a three-member panel, with a Chief Election Commissioner and two Election Commissioners.
How decisions are made and how are EC’s different from CEC? Decision-making within the panel is by majority. While the CEC can only be removed in the manner set out for a Supreme Court judge, the other two Commissioners may be removed on the recommendation of the CEC. In 1995, the Supreme Court held that the Election Commissioners are on a par with the CEC and the latter is not superior in standing with the other Commissioners. The EC has been demanding that the protection and safeguards given to the CEC under the Constitution should also be extended to the other Election Commissioners.
What kind of control does the EC have over civil servants during an election? As the superintendence and control over all aspects of the election process is vested in the EC, it exercises direction and control over civil servants deployed for election-related work. This means that bureaucrats engaged in the administrative aspects of elections, including police officers with law and order duties, are also amenable to the EC’s jurisdiction.
This power enables the EC to monitor both the manner in which civil servants perform their election-related duties, and prevent activities which may be seen as partisan. The EC often cites its vast powers under Article 324 to transfer or suspend officials during election time, even though they normally come under the disciplinary purview of the government of India or the State governments. There have been instances of the EC transferring not only Returning Officers, but also Commissioners of Police and Superintendents of Police.
What are the possible actions it can take against candidates and parties? The EC monitors the adherence of political parties and candidates to the ‘Model Code of Conduct’. If the violations are also offences under election law and the criminal law of the land, the EC has the power to recommend registration of cases against the offenders. However, for some violations — such as canvassing for votes during a period when electioneering is barred, making official announcements while the MCC is in force, and making appeal to voters on sectarian grounds — the EC has the power to advise or censure candidates, in addition to directing registration of cases.
In some cases, as recent incidents would show, the EC may bar candidates or leaders from campaigning for specified periods. Asking individuals to leave a constituency or barring entry into certain areas are other powers that the EC may exercise. These powers are not necessarily traceable to any provision in law, but are generally considered inherent because of the sweeping and plenary nature of the EC’s responsibility under the Constitution to ensure free and fair elections. Its powers extend to postponing elections to any constituency, cancelling an election already notified, and even to abrogate or annul an election already held.
What are the limitations of the EC’s powers? The EC does not have the power to disqualify candidates who commit electoral malpractices. At best, it may direct the registration of a case. The EC also does not have the power to deregister any political party. However, the Constitution empowers the EC to decide whether a candidate has incurred disqualification by holding an office of profit under the appropriate government, or has been declared an insolvent, or acquired the citizenship of a foreign state. When a question arises whether a candidate has incurred any of these disqualifications, the President of India or Governor has to refer it to the EC. The poll panel’s decision on this is binding.
Outcomes of the recent meeting: The steering committee has mandated that only companies that meet the 50% localisation threshold will be eligible for the incentives that will be available under the Faster Adoption and Manufacturing of Hybrid and Electric Vehicles (FAME-II) scheme to boost electric mobility as well as the ‘Make in India’ initiative. The decision has been taken to ensure that the tax payer’s money is not used to subsidise imports and encourage local manufacturing.
What are the salient features of FAME 2 scheme? Faster Adoption and Manufacturing of Hybrid and Electric Vehicles, or FAME 2 scheme aims to boost electric mobility and increase the number of electric vehicles in commercial fleets. Target: The outlay of ₹10,000 crore has been made for three years till 2022 for FAME 2 scheme.
The government will offer the incentives for electric buses, three-wheelers and four-wheelers to be used for commercial purposes. Plug-in hybrid vehicles and those with a sizeable lithium-ion battery and electric motor will also be included in the scheme and fiscal support offered depending on the size of the battery.
How will FAME 2 scheme help improve charging infrastructure? The centre will invest in setting up charging stations, with the active participation of public sector units and private players. It has also been proposed to provide one slow-charging unit for every electric bus and one fast-charging station for 10 electric buses. Projects for charging infrastructure will include those needed to extend electrification for running vehicles such as pantograph charging and flash charging. FAME 2 will also encourage interlinking of renewable energy sources with charging infrastructure.
Background: FAME India is a part of the National Electric Mobility Mission Plan. Main thrust of FAME is to encourage electric vehicles by providing subsidies. FAME focuses on 4 areas i.e. Technology development, Demand Creation, Pilot Projects and Charging Infrastructure.
Way ahead: India needs auto industry’s active participation to ease electric mobility transition. The auto and battery industries could collaborate to enhance customer awareness, promote domestic manufacturing, promote new business models, conduct R&D for EVs and components, consider new business models to promote EVs.
Government should focus on a phased manufacturing plan to promote EVs, provide fiscal and non-fiscal incentives for phased manufacturing of EVs and batteries. Different government departments can consider a bouquet of potential policies, such as congestion pricing, ZEV credits, low emission/exclusion zones, parking policies, etc. to drive adoption of EVs.