Book in the Glory of Goddess Called Cow

There are three inanimate and most revered ingredients of Hinduism and they are the Gai (Cow), the Ganga, and Gayatri. The importance of all three has been described in the Hindu scriptures. While the Gai and Ganga are worshipped in the mundane form and Gayatri mantra serves as the means of spiritual exaltation. Hinduism is a pantheistic religion but these three are kept at the highest pedestal.

Two advocates: K.M. Shukla and the Senior S. Balakrishnan, who mainly practice in the Supreme Court, have jointly written a remarkable book titled ‘Cow a Celestial Being’, which takes one’s a breath away by their knowledge and research soaked with sincerity and devotion. In their well-informed book, the writers have championed the cause of ban on the cow slaughter in the most spirited manner. They demonstrated with their sound logic that the Cow is not an animal but it is a ‘being’, which has virtually been brought on the surface of the earth from heaven to bestow worldly as well as a divine pleasure to all who seek and serve her.

They have profusely quoted the religious books like Vedas, Puranas and the Bhagwad Geeta and also the well-documented theses, which prove the enormous utility in the worldly life. The Hindu mind is accustomed to referring to the supreme divine as a Goddess and as the Universal Mother. Out of the infinite attributes by and through which the universal mother manifests herself, the Cow is one of them.  The Cow has been named in the Vedas as ‘Aghyna’, which means inviolable and her other name is ‘Ahi’, which means not to be killed and another one is ‘Aditi’, which means never to be cut into pieces. Thus, the most sacred book of Hindus i.e. Vedas unequivocally prohibits the killing of Cows.

         The advantages of having the Cow are innumerable and beyond description. The Panchgavya i.e. the five materials made from the Cows have the immense economic and medical use. It must be mentioned here that Panchgavya is made from a mixture of five products from the Cow, which are milk, curd, ghee, urine and dung, which are scientifically proved to be immunity- booster and disease-healer. Many judgments of the Apex Court have also been discussed in the book which has upheld the total ban on the slaughter of the cows. The Constitution of India, in deference to the feelings and sentiments of the overwhelming majority of Indians, has included in the directive principles for the prohibition of the cow slaughter. All native religions like; Hinduism, Buddhism, Jainism and Sikhism valiantly defend for the ban on the cow slaughter, even Islam and Christianity do not encourage it. The Bible is very clear, which says ‘He that killeth an ox is as if he slew a man’. Many Muslim rulers in India had banned the killings of the cows.

     While the opposition to the slaughter of cows has extensive and ancient roots in the Indian history, the earliest known such activities are traceable to Sikhs of Punjab, who opposed cow slaughter in the 1860s. Thereafter, the founder of the Arya Samaj, Swami Dayanand Saraswati made it a massive movement in the late 19^th century, which was carried forward by Mahatma Gandhi in the early 20^th century, but not with same zeal and vigour as was found in the movements of Sikhs and Arya Samaj. Although, the cow protection movement is mostly connected with India, yet it is applicable in Sri Lanka and Myanmar also. In India the cow slaughter ban is in place throughout the country except for Kerala, West Bengal and part of the North-East, even in the Muslim majority state of Jammu and Kashmir nobody can kill a Cow.

     The writers have discussed the issue of cow protection by juxtaposing it with cow slaughter. They have used all the weapons of the armoury of their logic from different angles and have succeeded in bringing their points home that the article 51A(h) should be adhered to by every citizen of the country to develop the scientific temper, humanism and the spirit of inquiry and reform.  The word humanism has been supplied emphasis by them and therefore, the cow protection is perfectly consonant with the constitutional spirit.

The writers have also laid more emphasis on a point that it is the majority community which has the greater responsibility for protecting the cows by providing theme care in their old age or when they stop yielding milk. Another startling fact, which has been given by them is that ‘Meat is a second-hand food which is responsible for global warming and hunger.’  The book is written in simple language and convincing style.  It is not only worth reading but for preserving as well.

Sri Lanka-India ties must be strengthened for mutual benefits

By Parmanand Pandey

Sri Lanka is an island which is surrounded by the Arabian Sea in the west, Way of Bengal in the east, the Indian Ocean in the south and the Palk Strait in the north was once the part of the Indian subcontinent. It is separated by a narrow and a very shallow sea of just 37 km in length at the narrowest point of India’s Dhanushkoti in Tamilnadu and Mannar district of Northern Province of Sri Lanka. It is so shallow that only boats, not ships, can be operated through this strait. It is said that two engineers- Nal and Neel- of Lord Rama’s army had built a bridge to cross over to Sri Lanka. That is why it is called Ram Setu. It is really strange that instead of calling it Ram Setu strait, it is known as the Palk Strait after the name of Robert Palk, who was the governor of Tamilnadu sometimes in the 18^th century. Northern and Eastern part of Sri Lanka consists mostly of Tamilians, who outnumber Sinhalese but in Central, Southern and Western parts of Sri Lanka, the Sinhalese are in the majority. In Sri Lanka, there are three official languages-English, Sinhalese and Tamil.

Indian influence

There is not only the geographical contiguity between India and Srilanka but there are cultural, religious, legal and political similarities between both countries. The people of Sri Lanka live and behave in the same manner as most of the Indians do. Therefore, to say that the relationship between India and Sri Lanka is very old is simply an understatement. According to geological studies Sri Lanka was once the part and parcel of India.  Influence of India in all spheres of Sri Lanka is seen to be believed. There has been regular trade and commerce between India and Sri Lanka even before the period of Mauryas and Guptas and this was followed in later centuries by the influence of Kingdoms located further south in the subcontinent, like the Pallavas and later on from the south Indian kingdoms of Pandyas, Cheras and Cholas.

The physical size of the Sri Lankan island is a little more than 65 thousand square kilometres, which is 1/4^th of the state of Uttar Pradesh in India. Sri Lanka has not only observed, assimilated, adapted certain good traditions of southern Indian old empires but have and in some instances, transformed them. The Buddhist civilisation, which is the most significant and enduring legacy of the north Indian empires was retained, nurtured and protected long after Buddhism has ceased to be of any great significance in India.

There has been an exchange programme of journalists between India and Sri Lanka for the last so many years through Indian Federation of Working Journalists (IFWJ) and Sri Lanka Press Association (SLPA). Almost every year SLPA invites the members of the IFWJ to Sri Lanka, which is reciprocated by the IFWJ, which receives journalists from Sri Lanka. Thus, the journalists of both countries get the opportunity to know, learn about both countries by interacting, meeting and visiting different places in both countries. This time many important journalists like B.V. Mallikarjunaiah, Hemant Tiwari, Siddharth Kalhans, Ajay Shukla, K. Asudhulla and Bhaskar Dube, Mukut Sarma was the part of the 15 member IFWJ delegation. SLPA’s Kurulu K. Kariyakarawana and his Indian wife Gitika Talukdar played an excellent host for the Indian journalists. Sri Lanka was a trouble-torn country from the beginning of the eighties till the end of the first decade of the 21^st Century. It was considered to be an unsafe place for tourists and as a result of it, the tourism of the country was hit hard. But in the last five or six years, tourism has picked up in Sri Lanka to an unprecedented level.

India’s significant contribution

As a matter of fact, tourism is the mainstay of the economy of Sri Lanka and after the end of the civil war, the number of tourists has increased more than three hundred times. Every day many chartered flights from India itself go to Sri Lanka.  For a large number of Hindu and Bauddha visitors, Sri Lanka is like a pilgrimage country because of its association with Lord Rama and Ramayana and Buddhism. The Indian delegation was invited by the Indian’s High Commissioner in Sri Lanka, Taranjit Singh Sandhu, who is an epitome of suave, polite and decent behaviour, told that the contribution of India in the development and modernisation of Sri Lanka is incomparable and is much more than any other country of the world. Although there is a misconception among SriLankan’s about the tourists as they think that only westerners are the real tourists, who come with bulging pockets for comforts, this notion is now changing. In the last few years, the number of Indian tourists to Sri Lanka has gone manifold and it is increasing with every passing day. The role of the Indian government in the building of the economy of the Sri Lanka is to be seen to be believed. Many rail lines have been constructed by India and on many tracks, the trains built in India are running. Unlike China, India believes more in the involvement of the local people in the developmental work of Sri Lanka rather than importing the workforce from India to Sri Lanka as China does. Most of the Chinese projects are financed, conceived and built by them only because they bring the workers from their own country ignoring the claims of the locals in providing them employment. India has always been sensitive to the feeling of the local people and she has stood with Sri Lanka, be it any natural calamity or manmade disasters like civil war or the attacks of radical Islamists in the churches at the time of the Easter.

The importance of Sri Lanka for India can be known from the fact that Prime Minister Narendra Modi has visited the island for three times and has extended full cooperation to Sri Lanka in tiding over its problems. India has recently given five thousand built houses to accommodate the poor, needy and displaced persons of Sri Lanka during the long period of civil war. With the increasing number of casinos, dance bars and gambling centres, the number of comfort-seeking tourists of European and other countries is going by leaps and bounds. Colombo is the main city of Sri Lanka and it is very ideally located on the banks of the Arabian Sea. It can boast of the good Marine Drive, high rise buildings, many starred hotels, and the modern airport etc, the roads in Sri Lanka are spick and span and the people are highly conscious about the cleanliness in the city. Sri Lanka like India is a multi-religious and a multi-cultural country. The total population of the country is around 25 million. There are 15 Universities in the country and the literacy rate is around 95 per cent, much higher than any in any third world countries. Although, there is no comparison between India and Sri Lanka in many respects because India has the vast resources of minerals, skilled human force and the scientific development, yet the per capita gross domestic product of Sri Lanka is two times more than India’s. While it is a little more than 2,000 US dollar in India, in Sri Lanka it is more than 4,100 US dollar per annum.

Media scenario

Most of the newspapers and other media houses in Sri Lanka have very limited reach and resources. Newspapers are very costly as compared to Indian newspapers because they do not have a large circulation and advertisement support. Most of the newspapers have to remain dependent on government advertisements, which is not the case in India. Many independent TV channels have also come up in Sri Lanka, but they are not as exclusive in dishing out the programmes of any particular area or branch. Every channel is the motley of entertainment news and business programmes but in India, there are hundreds of news channels which provide news in different languages for 24x7. Similarly, there are many entertainment channels, sports channels and business channels in India, where one can find the contents of once own interests and likings, and this has been possible only because of the advertisement support which they get from the private establishments and the people.

As a matter of fact, newspapers in India are the cheapest in the world largely because they get the private advertisement- support and therefore have not to depend on the mercy of the government. This is one of the reasons that media in India is fierce, robust and has the capacity to take on the high and mighty which is not possible in other third world countries. Apart from it the readership is also quite high, and the reach is wider in India than in Sri Lanka or for that matter even in other developing countries. This is also one of the main reasons for India to have the flourishing, vibrant and dynamic democracy. The media in India, if it wants, can remain independent and it need not ride like a piggyback of the government. The legal system in India and in many other commonwealth countries like Sri Lanka is more or less the same. It is a different matter that after independence, the Parliament and the Supreme Court have completely transformed the Indian legal system and its jurisprudence, which is virtually serving as a role model for other countries. Hopefully, the relationship between India and Sri Lanka will further grow which will mutually beneficial.  The government of India must remain cautious of Sri Lanka, which is spreading its tentacles otherwise there are many big countries, which want to convert Sri Lanka into a springboard for serving their own ulterior motives.

Fali Nariman Laments at the Supreme Court

The new book of Fali S. Nariman ‘God Save the Hon’ble Supreme Court’, is full of lively anecdotes and tit-bits that make it a good reading but those who expect to get any philosophy, jurisprudence and guidance ‘what ought to be in the field of law’ would be highly disappointed. F.S. Nariman has seven decades of standing in the legal profession and for more than five decades he has been practising only in the Supreme Court. He has been on the zenith of the profession for many decades and is held in high esteem by the bench and bar alike. Whatever he says inside or even outside the court is heard with rapt attention.

The title of the book suggests that he is not satisfied with the goings-on in the Supreme Court and therefore he prays to save the Hon’ble Supreme Court but one fails to understand why a person of Nariman’s stature has not taken any firm stand or cudgels to remove Augean stable, which has set in the Court of late? The first chapter deals with mainly the internal rivalry, squabbles and one one-upmanship of the Judges. He has very meekly expressed his displeasure over the public expression of dissatisfaction of the four senior Judges in January of 2018. He appears to be against the Public Interest Litigations, which bespeaks of the mental makeup of most of the established lawyers, who never want the hornet’s nest to be disturbed. He has mostly taken up cases of corporate houses. He has discussed some cases, in brief, which partly present one side of the Supreme Court. Those cases are: ‘Jindal Stainless Steel vs the State of Haryana’, ‘Aviram Singh vs C.D. Gomachand’, ‘Krishna Kumar Singh vs the State of Bihar’, ‘Shayara Bano vs Union of India’ also known as Triple Talaq Case, ‘Justice Puttaswami vs Union of India’, ‘National Insurance Company vs Pranay Sethi’, ‘Common Cause vs Union of India’, and ‘State of Jharkhand vs Hindustan Construction Company’. He says that these are the best cases which have been decided by the Supreme Court in recent times but many cases like that of Justice C.S. Karnan of the Calcutta High Court (his parent High Court was the Madras Hgh Court) has put a bad light on the state of affairs of Supreme Court.
Fali S. Nariman as an Advocate has never been very combative in the courtrooms, always very courteous and a stickler to the decorum and that is what he expects from the youngsters as the fascinating future of law belongs to them. He belongs to the old school of Bhadra Lok genre of Advocates, who hardly raised their voice even against those Judges who are rude and discourteous in the Courts. It will not be out of place to mention here that the Supreme Court before 1970 was a highly retrogressive forum of justice, no progressive judgements were delivered by it, be it the case of Privy Purses, Bank Nationalisation or Land Reforms , all of them were passed by the Parliament but they were set aside by the Supreme Court.
The Supreme Court instead of supporting the cause of the poor, downtrodden and deprived sections of the society, adopted the approach of elitism, to the disgust of the common people of India. Surprise of all surprises is the fulsome support that those judgements got from the towering Fali S. Nariman. There is a ‘Stephanion School of Lawyers’ in the Supreme Court, who never think big and innovative as they suffer from the subaltern mentality. They are the biggest stumbling blocks in changing the character of the judiciary, legislatures or the executive. Stephanion does not mean those who have come out from the Stephens’ College, but it is a metaphor which connotes and signifies the elitist culture. Such people never stand in favour of teeming and toiling masses but believe in the status quoism of comfort living persons.
He has discussed the role of the Judges, Lawyers and Parliamentarians and has waxed eloquent about the 'basic structure' of the Constitution as propounded in the Keshvanand Bharti case, way back in 1973. As a matter of fact, it is the considered opinion of this reviewer is that the theory of ‘basic structure’ is a big hoax. In the name of the basic structure, the Supreme Court has substantially throttled the wishes and aspirations of the people. It has put shackles and fetters on the desires of the people. Needless to say, that it is the Parliament which represents the desires and ambitions of the people and the 'doctrine of basic structure' amounts to the usurpation of the rights of the Legislature by the Supreme Court.
He has devoted a chapter on the freedom of speech and expression, wherein he has certainly praised the role played by the media in certain spheres, but he has, at the same time, glossed over the corruption prevailing in the media itself. He has not written a word against the exploitative media houses. He has quoted three important cases which are four to five decades old namely; ‘E.P. Raiappa vs the State of Tamilnadu’, ‘Ajay Hasia’, ‘State of West Bengal vs Anwar Ali Sarkar’ and ‘Kathi Rani Rawat vs the State of Saurashtra’, which are of the vintage value but much has changed since then. It is very strange that in the name of ‘equality before the law’ as enshrined in article 14 of the Constitution, Fali S. Nariman stands behind such people who have made the Supreme Court the handmaiden of the corporate houses and the thugs of the country, who have cheated the people behind the veneer of subtle sophistication.
His compendious autobiography ‘Before Memory Fades-An Autobiography’, was certainly was a delightful reading but the present book does not, in any manner whatsoever, throws any light on the changing scope of the law and the advocacy. There have been only a few judges who have certainly brought laurels to the Supreme Court and among them were Justice B.V. Krishna Iyer, Justice Bhagwati (except, of course, his disgraceful judgement on the ADM Jabalpur case), Justice D.A. Desai. Justice A.N. Ray (Yes! the same Justice A.N. Ray, who superseded the senior-most judges of the Supreme Court and became the Chief Justice of India, his sterling role in Keshvanand Bharti case and Bank Nationalisation case speaks about the sparks of his progressive thinking to convert the judiciary into the vehicle of the transformation of the society). Alas! however, he was a much-maligned judge because of his opposition to the retrogressive judiciary.
There is also a chapter on Minorities at the Crossroads, in which he has unnecessarily shed tears on the rights of the minorities. Instead of prodding and encouraging them to be the part of the mainstream, he has praised for the protection of their cloistered virtue. The education and economic upliftment of the minorities are more important than anything else but strangely; he has not spoken anything against the Christian missionaries, who have been driving a wedge between the Christians and non-Christians by opening the schools and colleges only for themselves in defiance to the provisions of the equality before the law. It is highly shocking that the Kerala Education Bill, which was introduced by E M.S. Namboodiripad in 1958, which wanted to bring parity in the educational standards has been upbraided by F.S. Nariman in his book.
He has paid a very moving tribute to V.R. Krishna Iyer and an Advocate of Lucknow R.N. Trivedi, he deserves kudos for glowingly remembering the stalwarts.
The book has been written in the fashion of storytelling in elegant English. Unfortunately, even after seventy years of the existence of the Supreme Court, those who speak crisp and highly accented English command high premium in the advocacy. Surprisingly, the legal luminary like Fali S. Nariman has not discussed the desirability of the NJAC (National Judicial Appointment Commission), because today what we find is the highly 'incestuous system of appointment of judges' in the Higher Judiciary.

Supreme Court Upholds Reservations in Promotions

Supreme Court, as they say, is ‘Supreme’ not because it is infallible but because it is ‘final’. However, in a number of cases, we find that more confusion than clarity has been created by the Supreme Court. Be it regarding the management quota in the or even reservations in the government jobs.   On the issue of the reservation, the Supreme Court has been giving varying opinions in different cases. In Indira ‘Sahni vs Union of India’ case, which was filed immediately after the implementation of Mandal Commission report, the Supreme Court that (a)reservations in the public sector jobs cannot exceed more than fifty per cent. But when some state governments like; Karnataka and Tamilnadu provided for reservations up to, it was justified on archaic grounds; (b) those among backwards belong to the creamy layer would not be able to avail the benefits of reservations.

Another important factor which has been of great debate and discussion is that once a person has availed the facility of reservation at the time of appointment should not be able to get it for the promotion. This matter was bitterly fought but the Government of India set it to rest by amending the Constitution and inserting 4A to the article 16 in 1995 which authorised consequential seniority in cases of reservations in promotions for scheduled castes and scheduled tribes. However, in 2007 Supreme Court said in the case of N. Nagraj that reservation in the promotion cannot be allowed which affects the working capacity of those who have been deprived of the promotion, but it was related to OBCs.  Again in 2002, the Government of Karnataka enacted a law stipulating that consequential seniority would follow upon the promotions of SC/ST employees, which, in a sense means that if a reserved category employee was promoted before a more senior colleague by virtue of his or her belonging to the reserved category than in the higher level post the person would be senior to others.

In 2017 in B.K. Pavitra – I the Supreme Court then found that the Karnataka law did not comply with M. Nagaraj and was therefore unconstitutional. In response, to that, the Karnataka government commissioned a study which is known as the ‘Ratna Prabha Committee Report’, and based on the results of the study, re-enacted the earlier law. It was again challenged in the Supreme Court saying that the government has overruled the law for which it had no permission as per the judgement of B.K. Pavitra – I. It was argued that the bill had been wrongly sent for Presidential assent. And it was also argued that the law was unconstitutional because it failed to exclude the ‘creamy layer.’ The Supreme Court observed at the beginning of the judgment that this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State's data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations. It was also argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature but it was submitted by the other side that it was the State that was in the best position to 'define and measure merit'.

The Supreme Court noted that the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. Applying these principles, the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining ‘inadequacy of representation.’ The Court adopted a deferential attitude towards the State's collection of data and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. It recognised the crucial point that constitutional goals are to be advanced by all three wings of the State and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State's subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. This principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself.  It might be argued that the Court ought to have been more interventionist because the case did indeed involve a violation of rights – Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by the Court by saying that, ‘there is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.’

According to N. Nagaraj, the government was also required to collect data on whether reservations in promotion would affect 'efficiency' in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so. As far as the concept of efficiency is concerned the Supreme Court said that the Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster-point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate.

The efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one-sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

‘Efficiency’ that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure 'individual merit', independent of an individual's group affiliation. The Court has said that what a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.  On the issue of creamy layer, it was argued that the law was unconstitutional because it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out that the doctrine of the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity.  Thus, the court validated the Reservation Act 2018, which has cured the deficiency which was noticed by B. K. Pavitra - I in respect of the Reservation Act 2002.

Freedom of Media: A sacrosanct and Cherished Right

Freedom of speech and expression is a sacrosanct fundamental right of every India, and it cannot be compromised under any circumstances. It can, however, be restricted only in the cases as enumerated in the Constitution of India. This has again been reaffirmed by the recent Supreme Court judgement in ‘Yashwant Sinha and others vs Central Bureau of Investigation’, wherein all three judges have said in unison that the ‘freedom of the press has always been a cherished right in all democratic countries’. Here it is necessary to know the backdrop of the case. When the Rafale case was decided by the Supreme Court in December last year saying that no irregularities have been committed by the government in finalising the deal of the combat aircraft, which is so necessary for the defence of India. Most of the opposition parties were crying foul over the judgement by saying that the judgement of the Supreme Court has been procured by concealing many vital facts from it.

Thereafter a newspaper namely; ‘The Hindu’ published some stories, which it claims to be investigative, and which were based on the correspondences between the officials of the Defence Ministry and the Defence Minister. Although the letters were reproduced in the newspaper in truncated form and the noting of the Minister were not published. In their letter, the officials had alleged that the decision with regard to Rafael was being taken directly by the Prime Minister Office bypassing the Defence Ministry, which is against the established norms. The petitioners then filed a Review Petition in the light of the new facts, which have emerged after the publication of the stories in the ‘The Hindu’. The government objected to it by saying that no new documents can be added to the Review Petitions, that too when the veracity of the documents itself is doubtful. In the normal course, it is the practice but here the court allowed the clipping of the newspapers to go to the root of the truth.

But here what is important is that the Supreme Court has waxed eloquently about the freedom of media rather than the case. As a matter of fact, in the initial years of the Constitution of India freedom of the press was considered to be synonymous with the speech and expression. However, our Constitution makers were very clear about it that it is not confined only to the media but to every citizen. During the constituent assembly debates, one of the members said that freedom is attained at considerable sacrifices and sufferings. The leaders of the Indian independence movement attached special significance to the freedom of speech and expression, which included the freedom of the press. Pt. Jawahar Lal Nehru in his historic resolution containing the aims and objects of the constitution said that constitution should guarantee and secure to all the people of India, among others, freedom of thought and expression. His famous words were ‘I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed and regulated press’. Thus, the constituent assembly considered the freedom of speech and expression to be a precious right.

In Romesh Thappar vs State of Madras the Supreme Court had said that way back in 1950 that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2) and thereby made it clear that there could not be any interference with that freedom in the name of public interest. The reasonable restrictions under Article 19(2) serve a twofold purpose, viz; on the one hand, they specify that these freedoms are not absolute; on the other hand, they put a limitation on the power of the legislature to restrict these freedoms. Three significant characteristics of it are – the restrictions under this class can be imposed only by the authority of law. No restriction can be imposed by executive action alone. Each restriction must be reasonable, and it must be related to the purposes mentioned in Article 19(2).

So, the question comes what would be the test of the reasonableness? The first test is the sovereignty and integrity of India. No freedom can be given to anybody to attack it. The second test is the security of the state. It has got a much wider expression which includes economic security also. It has two facets; the security of the state, which consists of external and internal. The third test is friendly relations with foreign nations. No news or views can be published or broadcast which is based on fictitious and false facts with intents to vitiate the relationship with the friendly countries.

Another important test is the public order, an elemental need in any organised society which cannot flourish in the state of disorder. There is a number of cases which have been decided by the Hon’ble Supreme Court on this issue. Decency and morality are other criteria for imposing the restrictions because obscenity cannot be allowed in the name of freedom of speech and expression. Similarly, in the exercise of one’s right to freedom and expression nobody can be allowed to interfere with the due course of justice or to lower the prestige or the authority of the court. The contempt of Court cannot be allowed to go unpunished because that will be like creating hindrance in the way of free and fair justice. In this regard, the case of EMS Namboodiripad vs TN Nambiar is very relevant. Shri Namboodiripad, the Chief Minister of Kerala, was very critical of the judiciary and had said in many press conferences that judiciary was an instrument of oppression, which was taken to a contempt of court by the High Court which imposed a fine of Rs. 1,000/- and in default to undergo imprisonment of one month which was also upheld by the Supreme Court. But in the case of Shiv Shankar, who was the Law Minister of India, the same yardstick was not applied. He had said that ‘anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found haven in the Supreme Court.’ This was an open contempt to the court by lowering down its majesty, but he was allowed to go scot free.

Apart from it, the other restriction is that freedom does not give the right to defame anybody or to incite any offence in society. The last but not the least is the sedition which has been prohibited under the law. However, the last restriction imposed in the name of the sedition is a matter of debate and there is a large number of intellectuals who feel that this provision must go. As a matter of fact, the settled law is that the confidential papers have been granted immunity from disclosure, not because of their contents but, because of the class to which they belong. This class includes Cabinet Minutes, Minutes of Discussion between heads of departments, High-Level interdepartmental communications and dispatches from Ambassadors abroad. In the famous S.P. Gupta’s case, the Supreme Court had said ‘that candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class. The English Judge Lord Reid has said in Conway vs Rimmer case that the court has to strike a balance between the detriment to the public interest on the administrative or executive side and detriment to the public interest on the judicial side. The words of the famous Jurist H.M. Seerwai will always ring true that ‘more stringent restrictions are necessary in the interest of public order because no freedom can survive without it’.

Freedom of speech and expression also works as a window to see what is happening in the outside world and also to bring a breeze of the fresh air inside the house. Till now we have been getting decisions and judgements from the Supreme Court only in the name of freedom of speech and expression, which has mainly remained confined to the freedom of the press but now in the light of the metamorphic changes in the world of media, the scope of the judgements will have to be expanded to include the audio-visual media, web and social media. In the present circumstances, it is the social media which has overtaken the other streams of the media. In fact, it has given freedom to every citizen of the country in the real sense of the term. Earlier, those who have been associated with the newspapers or televisions have been getting access, but others had virtually no say in it. However, with the advent of the social media, every individual has got access to the means of communication to disseminate his or her own views, ideas and the news, which was almost impossible in the other forms of the media. It is also true that while social media is within the reach of everybody and there are innumerable advantages to its use, but the disadvantages are equally fatal because the chances of its misuse are far more than benefits.

India must help Sri Lanka to crushing the rising fangs of Terrorism

   The horrific terrorist attacks in many Hotels and Churches of the small but beautiful island country of Sri Lanka have left almost every Indian dazed and shell-shocked. Our country has seen innumerable serial blasts in temples, educational institutions, bazars and other public places. Not long ago, every Indian used to avoid going even to Railway, Bus stations or other crowded places, unless it was very necessary, for fear of bomb blasts. Thanks to the present Central Government of Modi that terrorists have largely been cornered. One can find the watchful eyes of the security forces that deter the terrorists from hitting their targets. The public has now become more awakened, the use of modern technology like CCTV cameras has also helped in tackling terrorism. But as they say, no amount of security, howsoever and vigilant and strict, can prevent the determined terrorist attacks. And that is what has exactly happened in Sri Lanka, where one terrorist in a hotel was found to be a suicide bomber.

    Therefore, unless and until the genesis of terrorism is eradicated, it will be difficult to fully root it out. Terrorism is not a law and order problem; it is an ideological toxic. So, it must be detoxified on the one hand, and the terror of the security forces must be struck in the hearts of terrorists or budding terrorists. They must be made mortally afraid that if they hit, then they will be hit with more force and will not go unpunished. In Sanskrit, it is called ‘shathe shathyam samacharet’ (a rogue should be dealt with roguery). The Northern and Eastern part of Sri Lanka, which was practically cut off from the rest of the country due to terrorism could be brought back to mainstream mainly due to the ‘tit for tat tactics' adopted by her.

    However, there is a difference between the previous terrorist attacks and the present one. The previous Tamil terrorists were getting support from a very tiny section of Tamils in India and their replenishment was totally strangulated by the tough policies of India. But this one is a part of Islamic terrorism, which has made the lives of the people across the world a virtual hell. Therefore, it has to be dealt with an iron hand with the support of the international communities.

    In the last two and half decades, radical Islam has spread very fast, mainly in eastern Sri Lanka. These Islamic clergies and forces have taken full advantage of the unrest of many years in Sri Lanka. Some 28 years ago, when I visited Sri Lanka for the first time, I had found not many mosques and Islamic seminaries or madrasas but now their number has increased beyond all proportions. Only two years back I had met a large number of Urdu speaking Muslims in eastern Sri Lanka. I asked them out of curiosity as to where they learnt Urdu, they told me in the Gulf countries, they learnt it from Indians and Pakistanis. The Gulf money is being poured to build mosques and madrassas, which is also responsible for the radicalization of Islamic boys.

    Sri Lankans are peaceful by nature and the influence of Buddhism has made most of the Singhalese very docile and unobtrusive. Most of them are profiles in courtesy. It is in the interest of India that Peace must prevail in Sri Lanka so that she develops much faster. While the whole country is solidly behind the people of Sri Lanka, the Government of India must ensure that all help is extended to her in effectively and stringently dealing with the menace of terrorism, which is again raising its fangs in a different but dangerous manifestation.  

Pension is Deferred Wage, not a Charity

  The pension of the private sector employees will shoot up under the Employees’ Pension Scheme (EPS), thanks to a Supreme Court ruling which has dismissed a Special Leave Petition filed by Employees Provident Fund Organisation (EPFO) against the judgement of the Kerala High Court. The High Court had asked the retirement fund body to give pension to all retiring employees on the basis of their full salary, rather than capping the figure on which contribution is calculated at a maximum of Rs 15,000 per month. All employees in the organised sector currently contribute 12% of their salary (basic salary dearness allowance) to the EPF. The employer makes a matching contribution, of which 8.33% goes to the EPS.
      Back in March 1996, the EPS Act was amended to allow members to raise the EPS contribution to 8.33% of their full salary (basic + DA) provided the employee and employer had no objection, thereby doing away with the cap on salary. This raised the pension amount exponentially. But in 2014, the EPFO again amended the Employees' Pension Scheme to increase wage ceiling for coverage to the current cap. Thus, the new employees having salary exceeding Rs 15,000 per month were not eligible to become members of the EPS, while existing employees who were members of the EPS as on September 1, 2014, had an option to contribute on a higher salary. For this purpose, they needed to place a joint request along with their respective employers by a specific deadline, which has now been done away with by the Supreme Court.  Moreover, now the pensionable salary would be calculated as the average of the last five years' monthly salary, and not 12 months as per earlier norms, which was responsible for reducing the pension of many employees.
      This order of the High Court has been welcomed by millions of employees across the country.  As a result of this ruling an employee who presently gets a salary of Rs. 50,000/- and has completed 33 years of service would be entitled to get Rs. 25,000/- per month while earlier the worker could get only Rs. 5,118/- per month. Similarly, an employee getting a salary of Rs. 1,00,000/- per month and if he or she has completed the service of 25 years, he or she would be able to get the pension of Rs. 38,571/- per month while the pension before this order was payable to him or her was Rs. 3,420/- per month which is very low. Thus, such an employee would be an increase of 1026 per cent. It may also be noted here that earlier the Hon’ble Supreme Court of India in ‘Regional Provident Fund Commissioner of West Bengal vs Vivekanand Vidya Mandir and others’ had ruled that all allowances including the Special Allowances would form part of the salary.
    The Act provides for the formulation of a Scheme for the creation of a Provident Fund Account in the name of each employee of a covered establishment. The fund was to be constituted by depositing an employee's share at the rate of 12% of the basic wages including Dearness Allowance. The employer has also to contribute an identical amount, which together would constitute the Provident Fund. Initially, the Act did not provide for the creation of a Pension Fund or for the payment of pension. Later on, Section 6A was inserted, authorizing the creation of a scheme for the purpose of providing pension to the employees. Accordingly, the Employees’ Pension Scheme, 1995 was framed. As per the said scheme, the maximum pensionable salary was Rupees six thousand five hundred per month and contributions to the pension fund were to be made only on that amount. The corpus of the pension fund was to be constituted by transferring 8.33% out of the employer's contribution under Section 6 of the Act. As per the scheme, the maximum pensionable salary was initially fixed as Rs. 5000/- and was later on enhanced to Rs.6500/-.In the above circumstances, the pension scheme was amended with effect from 1^st September 2014. The pensionable salary was altered to mean the average monthly pay drawn in any manner, including on a piece-rate basis, during the contributory period of service comprising a span of sixty months preceding the date of exit from the membership of the pension fund.
   The High Court said that the intention of Parliament in framing the PF Scheme was to secure the rights of the lower wage earners. The said object was being defeated by the action of the employees paying contributions above the ceiling limit. The situation created was one of reverse subsidization. It has also disturbed the fund base of the scheme which in turn was found to affect the rights of the lower wage income group who receive a pension. It was in order to safeguard the interests of the said lower income group that the amendments were brought into force. The authorities are clothed with sufficient powers to amend the scheme, which power has been exercised considering the larger interests of the working class.
     The division bench of the High Court, however, said that ‘we have considered the respective contentions advanced by the counsel on either side.  In many of the cases, the validity of Section 6A the amendments was challenged. The industrial revolution that brought about drastic changes in the structure of our society created a large and distinct section of people, the industrial workers. The large industrial establishments that started springing up all around, required the services of workers of various categories. They came in large numbers from the rural areas in search of better salaries, better living conditions and better career prospects. They settled down close to the industries spurring the growth of urban settlements, that later developed into our cities. Such workers, when they became old and infirm were found to be left with no income or means of sustenance. In view of the obligation in the Directive Principles, to ensure social justice to one and all, the State had to find some means to ameliorate the conditions of the old and infirm industrial workers. Taking into account the fact that the financial resources at the hands of the State were limited, an alternative method of constituting a fund with contributions extracted from both the employers and employees has been statutorily put in place by the EPF Act. The Provident Fund so created is made up of the contributions of both the employers and employees, with no contribution from the State Exchequer.
   The contention as raised by the EPFO was that payment of pension computed on the basis of the contributions made on their actual salaries by the employees would deplete the Pension Fund and would make the Scheme unworkable. The above contention, the High Court ruled, cannot be accepted as a legal and valid ground for scaling down the quantum of pension that the employees are entitled to receive, as per law. The Pension Fund is constituted by transferring 8 1/3% of the employer's contribution to the Employees Provident Fund without making the employees liable for any further contribution. The aim of the Pension Scheme was to ensure to the benefit of all the employees who were covered by the Employees Provident Fund Scheme.
   It cannot be disputed that the workforce in our country has only been growing in numbers with more and more establishments springing into existence and getting covered by the provisions of the EPF Act. The contributions paid by them on the basis of the actual salaries drawn by the employees are constantly adding to the base of the fund. Such a process of accretion is a continuing phenomenon. Therefore, there is no evidence of the fact that the fund is getting depleted by the payment of pension. It is commonly accepted that the fund base has only grown over the years by the accumulation of EPF contributions. India is a country with a large number of people living on the margins of subsistence, compared to whom an organised sector worker, even if lowly paid in relation to corporate executives or civil servants, is relatively well off. The Court has said that Pension is not a charity, but it is like deferred wages to help the employees in their old age. Government funds should be spent on healthcare, education or women’s empowerment, all of which have been identified as yielding high social returns.
   There is another side of it that what proportion of an employee’s earnings should mandatorily be saved is an issue for rational analysis, not arbitrary court orders. No employer is going to raise what it costs the company to hire a hand, merely because a larger proportion of that cost is mandated to be saved. All that will happen is that the take-home pay would dip. Whether an employee, at low levels of earning, would be better off by depressing current consumption to save for the future is for the employee to decide. Now it is the Supreme Court’s order that will have the final say.