22 January 2021: The Hindu Editorial Analysis

1) Defending liberty against political prosecution.

Courts need to recognize selective prosecution as a threshold constitutional defense against the abuse of state power.

GS-2: Separation of powers between various organs dispute redressal mechanisms and institutions.

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CONTEXT:

1. the November 27, 2020 Supreme Court judgment granting TV anchor Arnab Goswami bail says, not without considerable irony because of the personality involved.

2. Question rise on Is this use of state power legally permissible? Is there no escape for victims of such abuse of state power?  The Curt bringing an action for wrongful prosecution years? to protect the life and liberty of the accused?

3. The Power of liberty is most pernicious and widespread forms of abuse of state power in India involves the police and enforcement agencies selectively targeting political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison them, ostensibly on grounds unrelated to their ideology or politics.

 

Is separating two legal issues?

1. The illegality involved in this type of prosecution is not self evident under article 20 (3) No person accused of any offence shall be compelled to be a witness against himself.

2. The merits of the criminal case filed against them, against the concept of Natural justice.

3. Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue.

 

Is this is question of Selective prosecution?

1. The applicable legal standard is that the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law.

2. The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds (Violation of FR). The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.

3. A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.

 

What is the selective prosecution?

The selective prosecution is a procedural defense in which a defendant argues that they should not be held criminally liable for breaking the law, as the criminal justice system discriminated against them by choosing to prosecute.

 

Is selective prosecution is illegal:

1. So-called selective prosecution is only illegal if a defendant is singled out for a purpose that is itself wrongful, such as discrimination based on race, gender, or political or religious affiliation.

2. Like claims of a prosecutor’s vendetta, allegations of selective prosecution may get some press play but are almost never heard by juries.

3. There is nothing illegal about prosecutors being selective. Law enforcement has every right to allocate limited human and financial resources and pursue some but not all perpetrators.

 

Constitutional value of Right to liberty:

 “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

 

Article 21 secures two rights:

1.  Right to life, and

2. Right to personal liberty.

3. Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

 

Failure of Indian courts:

1. The courts have not recognised selective prosecution as an independent claim because of the erroneous assumption that the lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted.

2. The Report of the Law Commission (2018) on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted.

3.  The right against selective prosecution cannot be extinguished by conviction.

4. The Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings (even during the investigation stage) irrespective of the merit of the charges.

5. Recent judgment “a single day deprived of liberty is a day too many”, while every other court including the Supreme Court itself rejects bail applications of people jailed for years and months without trial,

 

Previous judgment on article 14 and 21:

1. The Supreme Court in the Kharak Singh’s case,:The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures

2. The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment.

 

Way forward:

1. Much of what is claimed to be discrimination results from efforts to target prominent people. Perhaps celebrities and politicians are indeed discriminated against in this sense, but such extra scrutiny is an occupational hazard.

2. Unless a discriminatory effect as well as a discriminatory purpose can be proven, no claim will be sustained. Such selectivity could also be a constitutional.

3. The Article 14 and of the right to life and personal liberty under Article 21.” To strengthen the protection of civil liberty, equality and democracy, it is time our courts at all levels  recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.

4. The scope of ‘procedure established by law’ and held that merely a procedure has been established by law a person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable.

 

2) Getting it wrong on India’s level of agricultural support.

The methodology behind the OECD’s numbers, that suggests negative support, has pitfalls and limitations.

 

GS-2: Effect of policies and politics of developed and developing countries on India’s interests, Indian Diaspora.

GS-3: Indian Economy and issues relating to planning, mobilization, of resources, growth, development and employment.

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CONTEXT:

1. How OECD estimates the support to the farmers in terms of producer support estimates (PSE), it’s comprise the two elements: market price support and budgetary payments.

2. The logic, the consequences, The Prices and gap behind the OECD negative support to Indian farmers by assessing its components.

3. OECD numbers suggestion on negative support, farmers, policymakers, and other stakeholders need to understand the pitfalls and limitations in the underlying methodology.

 

About OECD (Organization for Economic Co-operation and Development):

1. It is an international economic organization, Established in 1961 and It’s Members: 35 (Secretariat: Paris).

2. Aims to stimulate economic progress and world trade and Its members are committed to Democracy and Market Economy.

3. Most OECD members are high-income economies with a very high Human Development Index (HDI) and are regarded as developed countries.

4. India is not a member of OECD, but it is talking for expanding sectoral engagement.

 

What’s the issue?

1. The global trade tensions and new pressures on food supply chains arising from the COVID-19 pandemic,

2. OECD report giving world alternative policies that can distort markets and detract from a level international playing field.

3. The measuring government support in agriculture, fossil fuels, and fisheries and estimated support and related market distortions in the value chain.

4.  the OECD maintains up to date regulatory information and indicators on trade facilitation, non-tariff measures, export restrictions in the raw materials sector, and trade restrictions in services sectors

 

Agricultural Policy Evaluation of India by OECD:

1. OECD Report stated that the support provided to Indian agriculture is extremely low or negative, and, therefore, net taxed.

2. The OECD estimates the support to the farmers in terms of producer support estimates (PSE), which mainly comprises the following two elements: market price support and budgetary payments.

3. The OECD has estimated that Indian farmers received negative support to the extent of minus ?2.36-lakh crore and minus ?1.62-lakh crore in 2010 and 2019 respectively.

4. The estimated by the OECD was higher than the total budgetary allocation of the Ministry of Agriculture at ?1.09-lakh crore in 2019.

5. The agriculture support increased from ?1.61-lakh crore to ?3-lakh crore, between 2015 to 2019, growth registering 85%.

6.  Expenditure on the Pradhan Mantri Kisan Sammann Nidhi, (PM-KISAN), the National Food Security Mission, crop insurance, input subsidies such as fertilizer and electricity, are some of the measures covered under the 2019 OECD estimates.

7. The negative market price support was estimated at minus ?4.62-lakh crore in 2019.

 

What is Producer Support Estimate (PSE).

The OECD's aim is to measure the total amount of money transferred through agricultural policies. Many governments support farmers by propping up domestic prices, behind tariff barriers and through export subsidies, but also through public expenditure going directly to farmers. Taken together, these transfers are called the Producer Support Estimate (PSE).

 

The consequences of the OECD methodology:

1.  If the domestic price for a product is less than its international price, then support for that product would be negative.

2. A negative market price support for a product in one year can turn into huge positive support in another year on account of the relative movement of domestic and international prices.

3.  If in a particular year, the government does not provide any additional support compared to a previous year, the level of support calculated by the OECD can change.

4. This will arise if there is a change in either the gap between the domestic price and international price for a commodity, or its production, in the two years.

 

Why the gap between international and domestic prices?

1. The OECD assumes “government interventions” that lead to a gap between the international and domestic prices.

2. But if the government suppose does not implement any programme, the gap can still arise due to domestic and international factors.

3. The Changes in supply and demand conditions in the domestic and international market due to COVID-19.

4. The pandemic, weather conditions, depressed international price due to subsidies given by other countries, among other factors, can generate price gap.

 

Question the methodology:

1.  The OECD numbers suggesting negative support, farmers, policymakers, and other stakeholders need to understand the pitfalls and limitations in the underlying methodology.

2. The unpredictability in the inherent data, the total support can move from huge negative to huge positive.

3.  For India, the negative support as a percentage of the total value of agriculture production has substantially reduced in recent years.

4. It is possible that support to Indian farmers in the near future becomes one of the highest in the world due to pitfalls in the OECD methodology.

5. This might set alarm bells ringing, particularly in the developed countries, which may aggressively question India’s support measures.

 

Why Governments should renew effort to reform support to agriculture:

1. Governments worldwide provide more than USD 500 billion in often ineffective and trade distorting support to farmers each year, efforts to reform these policies have largely stalled, according to a new OECD report.

2. ‌The report shows that 54% of support is provided through policies that artificially maintain domestic farm prices above international levels.

3. Governments can support farm households and rural communities without negative effects on global markets.

 

Way forward:

1. By removing the link between support and farm production decisions, and investing instead in needed public services, governments can build an enabling environment in which farmers have the freedom to make business decisions in response to evolving market opportunities at home and abroad.

2. At the same time farm policy should be better targeted, improving access to technologies that will drive both productivity growth and sustainable resource use.

3. Just as beauty lies in the eye of the beholder, the amount of subsidy depends on the methodology adopted for calculating it. Rather then it’s human value and rights.

 

3) A case to dispose of mercy petitions swiftly.

The prolonged detention of death row convicts in prison is inhuman and against the canons of justice.

 

GS-2: Structure, organization and functioning of  the Judiciary.

GS-4: laws, rules, regulations and conscience as sources of ethical guidance; accountability and ethical governance.

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CONTEXT:

1. Former Punjab Chief Minister Beant Singh’s assassin, was sentenced to death in 2007 by a special CBI court.

2. Abolishing capital punishment in much country why not in India. The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment.

3. Not abolishment of capital punishment shows the lack of accountability of various officials in the government and the courts have adversely affected our criminal justice system.

 

India and Rare of rarest case:

1. Hanging and shooting are the two methods of death penalty in India. According to the Criminal Procedure Code, hanging is the method of execution in the civilian court system. The Army Act, 1950, however, lists both hanging and shooting as official methods of execution in the military court-martial system.

2. Its lists both hanging and shooting as official methods of execution in the military court-martial system.

3. India has voted against a UN General Assembly draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases.

 

Why India against of Abolishing capital punishment:

1. The Indian laws have specific provisions for commutation of death penalty in the case of pregnant women and have rulings that prohibited executions of persons with mental or intellectual disabilities, while juvenile offenders cannot be sentenced to death under any circumstances.

2. Death sentences in India must also be confirmed by a superior court and an accused has the right to appeal to a High Court or the Supreme Court, which has adopted guidelines on clemency and the treatment of death row prisoners.

3.  Poverty, socio-economic, psychic compulsions, undeserved adversities in life" constituted new mitigating factors to be considered by courts in commuting a death sentence to life imprisonment.

4.  the President of India in all cases, and the Governors of States under their respective jurisdictions, have the power to grant pardons, reprieves, respites or remissions of punishment or, to suspend, remit or commute the sentence of death penalty.

5. Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.

6. The argument of justice is that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime

 

Is need of hours to Abolishing capital punishment?

1. A moratorium is temporary suspension of executions and, more rarely, of death sentences. It is provisional and often depends on the will of a key decision maker (President, Minister of Justice...). Conversely, abolition is permanent as enshrined in law. “The use of the death penalty undermines human dignity.

2. Human Rights Watch opposes the death penalty in all circumstances because it is inherently cruel and irreversible. In 2007, the Philippines ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, which requires countries to abolish the death penalty

3.  As of 2020, a total of 53 countries still have the death sentence, employing a variety of methods including hanging, shooting, lethal injection, electrocution and beheading.

4. The use of the death penalty for crimes committed by people younger than 18 is prohibited under international human rights law, yet some countries still sentence to death and execute juvenile defendants. Such executions are few compared to the total number of executions recorded by Amnesty International each year.

5. It is the ultimate cruel, inhuman and degrading punishment. The death penalty is discriminatory. It is often used against the most vulnerable in society, including the poor, ethnic and religious minorities, and people with mental disabilities. Some governments use it to silence their opponents.

6. Capital punishment is often defended on the grounds that society has a moral obligation to protect the safety and welfare of its citizens. But if, in fact, the death penalty does not deter, and we continue to impose it, we have only sacrificed the lives of convicted murderer.

7. In most of the cases, death penalty can be avoided. Life imprisonment is the best alternative for the capital punishment. However the criminals, who do heinous crimes and are incapable of being reformed must be given death penalty, because they don't deserve to live, not even in prisons.

 

Supreme Court interpretation on the Death Penalty:

1. Jagmohan Singh v. State of UP 1973 case: The Supreme Court held that according to Article 21 deprivation of life is constitutionally permissible if that is done according to the procedure established by law.

2. Rajendra Prasad v. State of UP 1979 case: The Supreme Court held that, if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.

3. Bachan Singh v. the State of Punjab 1980 case: A Constitution Bench of the Supreme Court propounded the dictum of ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.

4. Machhi Singh v. State of Punjab 1983 case: The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.

 

Conclusion:

1. According to Amnesty International, thousands of Chinese are executed in that country every year, though such executions are classified as secret information. In 2018, Iran executed 253 convicts and Saudi Arabia executed 149.

2. The lacks of accountability of various officials in the government and the courts have adversely affected our criminal justice system.

3.  Delays in investigations, court hearings and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.

4. The death penalty is a legal punishment in India, and is permissible for some crimes under the country's main substantive penal legislation, the Indian Penal Code, 1860, as well as other laws. Currently, there are around 403 prisoners on death row in India.

5. On November 17, 120 UN member states voted in favor of a resolution in the Third Committee of the UN General Assembly reiterating a call for a moratorium on the use of capital punishment. Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty.