The Supreme Court’s five judge constitution bench delivered a judgement on May 11, 2023 regarding the demarcation of powers between the National Capital Territory (NCT) of Delhi and the Union Government, with respect to Services, as mentioned in Entry 41 of the Seventh Schedule.

This article provides an overview of what has occurred until now in this case including the judgement. Before we delve into the proceedings and the judgement, there are some provisions of the Constitution that should be discussed.

Provisions to understand:-

First among such provisions is the Seventh Schedule (VIIth) of the Constitution. The Seventh Schedule has three lists. List I-also known as Union List. List II- also known as State List. List III- Also known as Concurrent List.

Article 246 of the Constitution states that Parliament has exclusive power to make laws on subject enumerated in List I of the Seventh Schedule; States have the exclusive power to make laws on subjects enumerated in List II and finally, both centre and states can makes laws on subjects enumerated in List III with centre’s laws superseding state’s laws if there is a conflict, as a general rule. In essence, there are three lists and in State and Centre has exclusive control over one list each and over concurrent list, Centre has more control.

The second provision is Article 239AA of the Constitution which gives the name National Capital Territory of Delhi (NCT) to the Union of Territory of Delhi while mandating that a legislative assembly elected directly by council of ministers be there in NCT. Article 239AA (3)(a) states that the legislative assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.

In essence. Delhi should have a legislative assembly directly elected by its people even though it is a Union Territory. The state government of Delhi can make laws on State and Concurrent lists but cannot make laws on some subjects even though they are under State List. Those subjects are Police, Public Order and Land.

The third set of provisions is Article 73 and Article 162 of the Constitution. Article 73 states that the Union’s executive power extends to all those subjects on which the Parliament can make a law under List I. For example, Citizenship is a Central Subject. Only Parliament can make a law on it. Therefore, co-extensively, the Union can bring out a notification-exercising its executive power-on the issue of citizenship. Article 162 does the same with respect to states i.e., the extent of state’s executive power is the extent of power of legislature of the state.

And finally, Part XIV of the Constitution deals with services under Union and States. This part has all the provisions related to All India Services etc. however it does not mention Union Territories.

Facts

In 2015, the Union Home Ministry issued a notification which provided that the Lieutenant Governor of NCTD (An agent of the President according to the Constitution) shall exercise control “to the extent delegated to him from time to time by the President” over “services”, in addition to “public order”, “police”, and “land.” The Lieutenant Governor may seek the views of the Chief Minister of NCTD at his “discretion”.

Now the issue that arose in the case decided in May 2023 is that ‘services’ is an entry under List II [Entry 41]. The government’s rationale is as follows, for this exclusion:

The 1st line of reasoning is that- Part XIV- which deals with services- does not mention Union Territories. This means that Union Territories do not have special powers with respect to services since they will be exercised directly by the Centre.

Building on this, the second line of reasoning is that, under Article 239AA (3)(a)- the Delhi Legislative Assembly can only legislate on matters that are exclusively given to Union Territories. The government relied on the phrase “in so far as any such matter is applicable to Union territories” in the provision that says “legislative assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories.”

Since the state government cannot have executive power over matters it cannot legislate on, the Union argued that the exclusion of services from state government’s prerogative was justified. This has been the broad argument of the Union government since 2015.

What happened after the notification in 2015?

When the government of Delhi approached the Delhi HC, The Delhi High Court ruled that the Legislative Assembly of the National Capital Territory of Delhi (NCTD) does not have the power to make laws on services. The court held that the phrase “insofar as any such matter is applicable to Union Territories” in Article 239 AA (3) (a) of the Constitution of India excludes services from the legislative and executive domain of the NCTD.

On appeal, the Supreme Court referred the issue of interpretation of Article 239AA to a Constitution Bench.

The Constitution Bench held in 2018 that the NCTD is not similar to other Union Territories and the constituent power of Parliament was exercised to treat the Government of NCTD as a representative form of Government. The Constitution Bench further held that the executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate. The Constitution Bench also held that Parliament has the power to make laws with respect to all subjects in List II and III for the NCTD. The Constitution Bench held that the phrase “insofar as any such matter is applicable to Union Territories” is an inclusive term, and “not one of exclusion”. After solving the constitutional question, the appeals were placed before a two-judge bench.

In 2019, a two-Judge bench delivered two separate judgments. The judges differed on whether “services” are excluded in view of Article 239-AA (3)(a) from the legislative and executive domain of GNCTD.

Justice Ashok Bhushan held that the majority opinion in the 2018 Constitution bench judgment did not interpret the phrase “insofar as any such matter is applicable to Union Territories” correctly. He held that the phrase should be interpreted as excluding services from the legislative and executive domain of the NCTD.

The matter fell for consideration before a Bench of three Judges. The three-judge bench referred the specific issue relating to scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term “services” to this constitution bench.

Arguments of the Petitioner- Delhi Government

The petitioners argued that:

• The Part XIV of the Constitution applies to Union Territories too, as recognised by the Supreme Court in the case of Union of India vs. Prem Kumar Jain.
• The phrase “in so far as any such matter is applicable to Union territories” is facilitative in nature which permits such entries being made available to the Union Territory of NCTD without an amendment of the Lists in the Seventh Schedule.
• NCTD is not like all other union territories; it has a special status.

Arguments of the Respondent- Union Government

• Entry 41 of List II is not available to Union Territories, as it cannot have either a State Public Service or a State Public Service Commission.
• The expression “in so far as any such matter is applicable to Union Territories” in Article 239AA means that the entries contained in List II are available to NCTD to the limited extent to which they are applicable to Union Territories. The legislative powers of NCTD shall extend to only those matters which are ‘applicable’ to Union Territories.

Judgement

Firstly, the May 2023 judgement stated that the National Capital Territory of Delhi (NCTD) cannot be treated as any other Union Territory. When we compare Article 239AA-which deals with Delhi and Article 239A which deals with Union Territory of Puducherry-Article 239AA mandates that Delhi shall have a directly elected government and legislature. This gives a special status to Delhi in the framework of representative democracy.

Secondly, the judgement stated that the NCTD has legislative powers over all of State List and Concurrent List except Police, Public Order and Land whereas the Parliament has legislative powers over State List including Police, Public Order & Land, and the Concurrent List. However, the executive power of the Union only extends to the three exceptions. Since the state has power to legislate over List II except the three entries-the state will also have executive power with respect to the List II except those three entries. List II includes services and therefore, the NCTD will have the executive and legislative power over services that do not pertain to Police, Public Order and land, according to the judgement.

The judgement, essentially stated:

On different arguments advanced by the Union government proposing a “balance”, the Supreme Court stated that there exists ample balance between the powers of the state and the powers of the Union since the Parliament can override any provision of the state legislature, as provided by the Constitution, keeping in mind the national capital status of Delhi.

The court also stated that in a federal polity, accountability is a must, and, in this scheme, the Civil Service Officers will be accountable to the Minister, the Ministers will be accountable to the Legislature and the Legislature is accountable to the Electorate. If the exclusion of Services is allowed, in this context, the NCTD will not have an accountable bureaucracy while being accountable to the electorate.

Conclusion

This judgement reaffirms the federal character as part of basic structure of the Constitution and provides a balance between the NCTD’s democratic character and the national interest of having National Capital under the Union with respect to important areas of legislation.

However, in a brazen act, within one week of Supreme Court’s judgement, the Union government issued a notification giving primacy to the Lieutenant Governor (an appointee of the Union Government) in transfer and postings of civil servants serving the Delhi Government, contrary to the Supreme Court’s judgement saying that the services will be under the Delhi Government unless they are regarding Police, Public and Land.

Delhi Chief Minister Arvind Kejriwal has been touring opposition ruled states and has been meeting with opposition leaders to garner support to defeat the bill when it is tabled in the Parliament.

(The author is a legal researcher with the organisation)

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Minister of State in the Ministry of Home Affairs, G. Kishan Reddy, has informed the Lok Sabha that the Government does not intend to bring in a central anti-conversion law to curb interfaith marriages.

When asked whether the Union Government has sufficient evidence showing that interfaith marriages in India are connected to instances of forced religious conversion, he placed the burden on the States. His answer read:

“Public Order and Police are State subjects as per the Seventh Schedule to the Constitution of India. Hence prevention, detection, registration, investigation and prosecution of offences related to religious conversions are primarily the concerns of the State Governments/Union Territory (UT) Administrations. Action is taken as per existing laws by the law enforcing agencies whenever instances of violation come to notice.”

Recently, Uttar Pradesh and Madhya Pradesh introduced similar laws that criminalise interfaith unions leading to complete mayhem. Young couples have been harassed, assaulted, booked and even arrested under the new laws that have also been challenged in the constitutional courts.

Towards the end of January, the Madhya Pradesh High Court issued notice to the State Government in connection with a plea challenging the vires of the recently promulgated Madhya Pradesh Freedom of Religion Ordinance, 2020. The challenge to the Uttar Pradesh Ordinance is also pending before the Allahabad High Court.

Citizens for Justice and Peace also moved the Supreme Court challenging the Uttar Pradesh and Uttarakhand anti-conversion laws, on which notices have been issued.

The complete MHA response may be read here:

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The Governor of Uttar Pradesh, Anandiben Patel has promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (Uttar Pradesh Vidhi Viruddh Dharm Samparivartan Pratishedh Adhyadesh 2020) on November 28.

This comes four days after the Yogi Adityanath cabinet approved a draft of the ordinance curbing religious conversions only for the sake of marriage. This new proposed law provides for imprisonment of up to 10 years and fine of up to Rs 50,000 under different categories.

The preamble to the Act reads, “To provide for prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith or incidental thereto.”

The important provisions in the draft bill are as follows:

1) Section 3 prevents any person to convert or attempt to convert, either directly or otherwise, any other person from one religion to another by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage.

2) Section 5 penalises any kind of conversion by way of allurement, gift, gratification, easy money, material benefit, employment, free education in reputed school or better lifestyle, divine displeasure or due to coercion or fraudulent means.

3) Section 6 lays down that when marriage is done for the sole purpose of an unlawful conversion or when an unlawful conversion is done for the sole purpose of marriage, such a marriage could be declared null and void (on a petition presented by either party thereto against the other party of the marriage). The proviso to this Section states that all the provisions of sections 8 and 9 shall apply to such marriages.

4) Section 7 makes unlawful religious conversion a non-bailable and cognisable offence.

5) Section 8 provides for a procedure that needs to be followed by people who are voluntarily converting their religion. He/she shall give a declaration in the form prescribed in Schedule I at least 60 days in advance, to the District Magistrate.

Failure to do so will invite imprisonment for a term which shall not be less than six months, but may extend to 3 years and shall also be liable to fine. The DM will have to satisfy himself/herself that the Conversion is made voluntarily, if the permission is granted, then the concerned Priest, Pujari, Maulvi/Mulla, Padari shall inform the DM regarding the place and time of as to when he is going to convert a particular person.

6) Section 9 provides for the procedure to be followed once converted. the person is required to send a declaration in the form prescribed in the Ordinance to the District Magistrate. He/She has to state that he belonged to a particular religion and now he/she has converted to another religion. Failure to do so shall have the effect of rendering the said conversion illegal and void.

7) Section 10 prevents the State Government from providing any financial aid or grant to such institution or organization violating the provisions of this Act.

8) Section 11 categorises the parties to offences and holds people who abet/aid forceful conversion liable.

9) Section 12 puts the burden of proof as to whether a religious conversion was not affected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage lies on the person who has caused the conversion and, where such conversion has been facilitated by any person, on such other person.

In recent weeks, many states apart from Uttar Pradesh, like Haryana and Madhya Pradesh have revealed plans to enact laws to counter alleged attempts to convert Hindu women to Islam in the guise of marriage, which Hindutva activists refer to as ‘love jihad’.

The ordinance may be read here: 

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The All India Kisan Sangharsh Coordination Committee (AIKSCC) on October 30, 2020 demanded the withdrawal of the Centre-introduced Ordinance for the Commission for Air Quality Management in the National Capital Region and Adjoining Areas.

They called the new legislature “another undemocratic and anti-farmer ordinance,” through which the Union government would override states and claim the power to punish farmers. The ordinance is a means for the central government to absolve itself of responsibility because the Commission cannot compel it to provide resources to implement solutions, said farmer leaders.

The policy establishes an 18-member-Commission that comprises a Centre-appointed Chairperson and representatives from Punjab, Haryana, Rajasthan and Uttar Pradesh whose decisions regarding air-pollution and its quality management will supersede all state governments as well as Central and State Pollution Control Boards. However, the farmers’ organisation pointed out that the Commission does not include a farmer representative despite the presence of an industry personnel.

The overarching body would have the power to prohibit/regulate any process or operation and halt the supply of electricity, water or any other service. In addition, the Commission can also charge a fine of upto Rs. 1 crore or order imprisonment upto five years for any non-compliance.

These latest powers along with the recognition of stubble burning as a major pollutant has raised concern among the AIKSCC leaders.

According to a AIKSCC Punjab Union leader, “The Punjab Preservation of Subsoil Water Act, 2009 prohibits farmers from transplanting paddy before June 10th. The farmers have been demanding an incentive of Rs.200 per quintal of straw to make alternative disposal financially viable but the government has not provided such resources. The Court ordered Rs.100 per quintal but the government did not provide even those funds. Instead, it has established this Commission which has powers to put farmers in jail!”

AIKSCC General Secretary Hannan Mollah said that farmers had asked for the provision of a mechanism to crush the stubble so as to avoid the burning process. An alternative to stubble burning helps preserve soil fertility and prevents air pollution in their own villages. However, the government paid them no heed.

Over the past couple of years, thousands of cases were booked against farmers for stubble-burning, resulting in a lot of harassment. Punjab and Haryana farmers claim that government policies and laws pushed them into a cycle of paddy and wheat with barely three weeks in between, leaving farmers with little practical choice except burning the stubble.

“Despite Court directions to provide alternatives to farmers to manage the paddy straw, the Centre has not provided the necessary financial support to make it happen. Now, when the Court sought to appoint a one-member Committee consisting of Justice Madan Lokur to look into the implementation, the Centre has brought in this hasty ordinance to prevent the operationalisation of the one-member Committee. The Centre did not want a Supreme Court-appointed committee which would have made the Centre answerable too,” they said.

On October 16, the Supreme Court had ordered a one-man committee of retired Justice Madan B. Lokur to monitor the issue of stubble burning and consequent air pollution. Governments of Punjab, Haryana, Uttar Pradesh and Delhi as well as the Environment Protection (Prevention and Control) Authority (EPCA) were asked to assist the committee.

However, this order was again stayed on October 26 at the central government’s behest. They assured that a law would be introduced to tackle the stubble burning and pollution issue – the new ordinance.

Regarding air pollution, the AIKSCC acknowledged the severity of the issue but claimed that there was a disproportionate focus on farming activities like stubble burning.

“There are other, larger sources of pollution that need to be tackled instead of targeting the farmers. Studies by the Central Pollution Control Board have shown that industries including power plants are the largest source of air pollutants, followed by vehicles, even during the winter months,” they said.

The organisation also listed the brick kilns and burning of municipal solid waste as major contributors that government agencies need to address first. According to the Air Quality Index Bulletin of the Central Pollution Control Board, as of 4 PM of October 30, Delhi’s air quality stood at 374 index values with Very poor air quality that could lead to respiratory illnesses.

The entire Ordinance may be read here: 

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On the call of the All India Kisan Sabha (AIKS), farmers across the country held a nation-wide protest against the anti-farmer ordinances brought out by the BJP government. Copies of the ordinances were burnt in at least one lakh places in the country.

AIKS had alleged that through the three ordinances – The Farmers’ Produce Trade and Commerce (Promotion & Facilitation) Ordinance 2020, the Farmers (Empowerment & Protection) Agreement on Price Assurance and Farm Services Ordinance 2020 and the Ordinance to amend the Essential Commodities Act, were only to help the corporates gain profits and once these ordinances would be officially adopted, they would result in the abolishment of protective mechanisms like the Minimum Support Price (MSP) and enslavement and exploitation of farmers especially in backward areas, Patrika reported.

On the call of AIKS lakhs of Farmers, AgriculturalWorkers, Workers & Women burnt Anti-Farmer Ordinances across India. In Tamilnadu about 3000 activists were arrested. United protests will build resolute resistance against corporatisation of agriculture & attacks on labour rights. pic.twitter.com/OuDyNayJMN

— AIKS (@KisanSabha) June 10, 2020

Today in Domkal, there is a program to protest against the anti-farmer ordinance of the Modi government.#LalSalaamComrade pic.twitter.com/waBYtLk5wl

— SAYAN MONDAL (@officialsayanmo) June 10, 2020

The ordinances

‘The Farming Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020’ Ordinance is said to create an ecosystem where the farmers and traders will enjoy freedom of choice of sale and purchase of agri-produce. It promotes barrier-free inter-state and intra-state trade and commerce outside the physical premises of markets notified under State Agricultural Produce Marketing legislations – essentially stating that additional competition outside APMC markets will help farmers get better prices for their produce, reported India Cooperative.

‘The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020’ seeks to empower farmers for engaging with processors, wholesalers, aggregators, wholesalers, large retailers, exporters etc., on a level playing field without any fear of exploitation. This Ordinance will act as a catalyst to attract private sector investment for building supply chains for supply of Indian farm produce to global markets, India Cooperative reports.

The amendment to the Essential Commodities Act allows commodities like cereals, pulses, oilseeds, edible oils, onion and potatoes to be removed from the list of essential commodities.

Objections to the ordinances

Agricultural experts all over the country have said that the amendment to the ECA will allow private traders and corporates to store items without restrictions on quantity, paving the way for hoarding, The New Indian Express reported. PR Pandian, president of the committee of all farmers associations of Tamil Nadu told TNIE that while there was surplus production, traders and companies buy produce at low cost and sell later at high prices.

Talking about the The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020, K Venkatraman, general secretary, Tamil Desiya  Periyakkam told TNIE that most farmers in the country were small and marginal farmers and wouldn’t be able to hold their ground while bargaining with private companies.

Writing for the Orissa Post, Bhala Chandra Shadangi, an activist, said that the Farming Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 would give freedom to big corporates engaged in agro-business to procure farm produce at a cheap price.

Nationwide Protests

At one of such protests held in Jharkhand, slogans were raised to withdraw the farmer ordinances and waive farmer loans, reported Live Hindustan. In Tamil Nadu, the police arrested nearly fifty people protesting at Vellore and Ranipet, reported The Hindu. The protestors said that all the ordinances had been brought about without any consultation of farmers. In Punjab, farmers staged protests in Amritsar, Tarn Taran, Ferozpur, Moga, Jalandhar, Hoshiarpur and Fazilka districts and submitted memorandum to the authorities addressed to Prime Minister Narendra Modi, demanding the revocation of the Farming Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 and withdrawal of the amendment to the Electricity Act.

In light of the country-wide protests, the AIKS issued a statement congratulating the peasantry and workers coming out in lakhs to burn the copies of the ordinances. In the statement, Ashok Dhawale, President, AIKS and Hannan Mollah, General Secretary, AIKS said that in Tamil Nadu, the protest was held at 96 centres and 2839 activists were arrested in Kerala, Bengal and Tripura as the anti-farmer ordinances and bills were burnt in front of the Central government offices as well as villages across the state. In Maharashtra, the statement said, despite the heavy rains, the copies of the ordinances were burnt in more than 100 centres. Participation was also witnessed in Rajasthan, Assam, Bihar, Haryana, Andhra Pradesh, Odisha, Jammu and Kashmir, Madhya Pradesh and Chhattisgarh among other states.

The statement said, “The massive participation is a clear warning to Narendra Modi and the BJP that united struggles of workers and peasantry will build resolute resistance and defeat the conspiracies to corporatize agriculture and withdraw labour rights.”

The statement by AIKS may be read below

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On April 22 came the ordinance from the President of India, approved by the Cabinet, amending the Epidemic Diseases Act, the colonial era law which has been invoked due to the outbreak of COVID19 epidemic. While containing the disease and treating is and should be the primary focus of the government, these are not the only issues that have besieged India since the lockdown.

Issues like dissemination of fake news, attempts to disturb communal harmony, promoting enmity between religions, blatant misinformation pose formidable challenges in the fight against COVID19. Yet, the government has selectively chosen to address one issue, that of violent attacks against on-duty health care workers. There is no denying that health care workers are on the frontline and the most important functionaries during this health crisis and protecting them should be the top priority of the government.

The central government, has, however, gone a tad bit further in doing that by amending the Epidemic Diseases Act via the ordinance route and introducing long prison sentences and hefty fines as punishments for attacks on health care workers.

Section 2B has been inserted which says that, “No person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property during an epidemic.”

In section 1A the terms “acts of violence” and “healthcare service personnel” have been defined. While the term “healthcare service personnel” has been defined to include not just primary health care workers such as doctors, nurses and paramedics, but also workers at community level like ASHA workers who are also contributing considerably, and any other person so empowered by the government.

The terms “acts of violence” includes not just causing hurt, but also includes acts of harassment and causing hindrance as well as damage to their property.

These definitions have clearly drawn influence from real incidents that have taken place in various parts of the country where health care workers have been attacked with stones, ambulance drivers have been injured, doctors who come to containment zones to test people for the disease have been chased away. The magnitude of the problem cannot be denied, yet the weightage given to these offences are incongruent with existing criminal laws in the country.

There are two ways of looking at the way the offences have been dealt with. One can say that the hefty fine and the long term of imprisonment can prove to be a serious deterrent to future offenders and the other view point is that it can become a tool of harassment at the hands of law enforcement agencies. Naturally, all acts of violence against health care workers will now be classified under this new ordinance, making it easier for the police to book offenders and take urgent cognizance of such incidents. The same thing happened when lockdown was initiated and government order directed that violators of lockdown be booked under section 188 of the Indian penal Code which has a minor punishment of 1 month of imprisonment and Rs. 1,000 in fine. The police started booking hundreds of people under this section. Albeit, the scope for misuse here is much more since the crime need not be defined very clearly under section 188.

There is also no denying that there is some scope for misuse under the offences defined in the ordinance as well; since a mere act of causing hindrance to a health care worker can also be deemed to be an act of violence, for which the punishment is minimum 3 months and maximum 5 years and fine of at least Rs. 50,000 which may extend up to 2 lakhs.

Additionally, if found guilty by the court, the convict will have to separately pay compensation to the complainant.

In absence of the ordinance, a person committing such an offence of causing “hurt” would be booked under section 323 of the Indian Penal Code – Punishment for voluntarily causing hurt

—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

It is only causing grievous hurt that invites a much harsher punishment even in the IPC. Grievous hurt is defined in IPC to include heinous acts like emasculation, privation of sight, hearing, limbs, disfigurement of face and such other. The punishment for grievous hurt is up to 7 years and fine, which is to be decided as per discretion of the court. On the other hand, punishment for grievous hurt under the ordinance is up to 7 years and the fine ranges from 1 lakh to 5 lakhs, plus compensation as mentioned before.

Clearly, the ordinance has made a less grave offence into a grave offence by according more punishment to just causing hurt. Also, causing hurt is a bailable and non-cognizable offence under the IPC, while it has been made non-bailable and cognizable under the new ordinance, which specifically aims to protect health care workers during this epidemic.

This ordinance may have come as a relief to doctors, nurses and other health care workers who are on the frontline, risking their lives, but it surely is not in tandem with the existing criminal laws in India. Whether the escalation of these offences prove to be deterrent, is something only time can tell.

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The Central government on April 22 promulgated an ordinance to protect and give a sense of security to frontline workers in the fight against COVID19. Since the outbreak of the disease in India, there have been news reports of incidents whereby healthcare workers who are working on the frontlines, are being attacked by locals while they do their duty.

Several such incidents and the growing insecurity amongst the healthcare community prompted the central government to issue this ordinance which is effectively an amendment to the Epidemic Diseases Act; the colonial era law which has been invoked to give special powers to states so that they can combat and contain the epidemic.

The ordinance is called the Epidemic Diseased (Amendment) Ordinance, 2020, which is to be enforced ‘at once’. The amendment has added section 2B to the Act which deals with prohibition of violence against health care service personnel and damage to property. The section reads as follows:

2B. No person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property during an epidemic.

The punishment for this act is mentioned in newly inserted section 3(2) which states that whoever commits or abet the commission of act of violence of damage to property will be punished for minimum 3 months and maximum 5 years and fine of at least Rs. 50,000 which may extend up to 2 lakhs.

Further, if any grievous hurt is caused to the healthcare service personnel, then the punishment will be minimum 6 months and maximum 7 years with fine of at least 1 lakh which may extend to 5 lakhs. Additionally, the accused, if convicted, of any of these offences, shall also pay compensation for causing hurt and/or for damaging property.

The definition of ‘act of violence’ and ‘health care service personnel’ is provided in newly inserted section 1A:

a. “act of violence” includes any of the following acts committed by any person against a healthcare service personnel serving during an epidemic, which causes or may cause-          

i. harassment impacting the living or working conditions of such healthcare service personnel and preventing him from discharging his duties;

ii. harm, injury, hurt, intimidation or danger to the life of such healthcare service personnel, either within the premises of a clinical establishment or otherwise;

iii. obstruction or hindrance to such healthcare service personnel on the discharge of his duties, either within the premises of a clinical establishment or otherwise; or

iv. loss or damage to any property or documents in the custody of, or in relation to, such healthcare service personnel.

b. “healthcare service personnel” means a person who while carrying out his duties in relation to epidemic related responsibilities, may come in direct contact with affected patients and thereby is at the risk of being impacted by such disease and includes-

i. any public and clinical healthcare provider such as doctor, nurse, paramedical workers and community health worker

ii. any other person empowered under the Act to take measures to prevent the outbreak of the disease of spread thereof; and

iii. any person declared as such by the State Government, by notification in the Official Gazette.

The offences of act of violence as well as causing grievous hurt under this law, have been made cognizable and non-bailable, but compoundable. Which means the person committing these offences can be arrested without a warrant and cannot get bail by default but the complaint can be withdrawn by the complainant. The investigation is directed to be completed within 30 days of registration of FIR and the trial, within one year.

The ordinance is not just about defining offences against health care personnel or destruction of property. It also gives the Central government the power to make regulations to inspect any bus, train, goods vehicle, ship, aircraft and for detention of any person intending to travel or having travelled by these modes.

The complete ordinance may be read here

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Covid-19: Muslim religious leaders and groups urge people to pray at home during Ramzan

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The approval comes right after the re-election of the Modi government at the centre, and is being seen by many as a repressive move. To understand the implications of the proposed law and what it specifically imeans for democratic rights, the Indian Cultural Forum spoke to some eminent academics and writers.

Nandini Sundar, Professor of Sociology at the Delhi School of Economics, said that such an ordinance would have a “chilling effect on all research, teaching and activity in the university. Even if “anti-national” activities are not defined, the target is quite clear – anything that is critical or questioning the current government will be considered as “anti-national”.” Sundar pointed out that the government prescribing such rules for universities is extremely dangerous, and added that “if people are engaged in anti-national activities there are other laws to deal with that.” 
Reacting to the draft ordinance, writer and scholar Ganesh Devy said, “Universities are meant for generating thought and meaningful social questions…This kind of “fatwa” is the end of the university system.”

The universities would be given a year to enforce the law. Many feel that this is a part of the larger attack on academic institutions since the current regime came to power in 2014. The Modi-led government, accused time and again of curbing debate and saffronising education, is opposed to the very idea of a university. The draft ordinance, they think, is another step in the same direction. 

Ghanshyam Shah, sociologist and former Professor at Jawaharlal Nehru University, is of the opinion that the ordinance defeats the very purpose of a university. He says: “University is meant for free and open discussion. And nothing is sacrosanct as far as the discussion within the university campus is concerned. Now this “anti-national” – one wonders what is meant by that. Anything I might want can make an “anti-national”. I want development for dalits and I might be accused to be an “anti-national” because you are not talking about India’s upliftment, but dalit upliftment. So any opposition or any criticism of those in power would be then “anti-national”.”

Echoing a similar concern, Abha Dev Habib, Professor of Physics at Delhi University, points out: “Academic institutions may be funding or conducting various research projects – how will you scan whether what they are doing is ‘national’ or ‘anti-national’? By scanning every seminar? By scanning every research project? I don’t understand the need for such a bill.” She sees the move as contrary to the basic requirements of fruitful research and academics: “If you want to really do well in research or in knowledge production, then the universities – whether public or private – need to have the freedom to think in a new manner, and it may not be an easy task… We must understand that anything new in science came only through questioning what existed and challenging superstitions.”

According to her, there is also a direct connection between the unfolding projects of the Adityanath-led UP government and the agenda of establishing an academic stranglehold. She says, “If you look at what has happened over the last five years in Uttar Pradesh, and the kind of violence that has happened against dalits and women, and how the focus has been shifted to the cow…they want to have a greater control over these processes through control over universities – through a greater control over what is taught and how it is taught.”

Eminent historian Uma Chakravarty claims that the draft law is of a piece with some of the worst forms of authoritarianism historically. She says, “It is like from the McCarthy era in the US where they imagined “un-American” activities and hauled hordes of people from the universities and from the cultural world and slapped such accusations against them. They aunched a huge witch hunt against those whom they identified as “un-American” for their supposed communist sympathies. It didn’t matter whether they were or they weren’t communist. The process amounted to a farce. It wasn’t even any legal procedure — they called someone to testify, that person will then know other people, and they will be asked to come and testify, and then basically they lost their jobs, they moved away quite often from America to go and teach in other universities. They were terrible times. Even people like Charlie Chaplin went away from Hollywood. I am reminded, as a historian, of this kind of thing. It is a targeting of the universities where, according to the ruling regime, there should be no critical thinking, no independent thinking and you can create a bogey of nationalism and charge others with “anti-national” activities. You could be stuck in court and meanwhile your careers would be destroyed. I am reminded of the McCarthy era in America in the late 40s — their version of hysteria against the so-called communists. It is basically a witch hunt.”

While Uma Chakravarty invokes the migration of dissenting academics to other countries, Debaditya Bhattacharya, Assistant Professor at the Kazi Nazrul University, thinks that a different kind of journey may be playing out in India today. Locating the draft ordinance in the situation of public universities under the Modi regime, he says: “This is a clear move to bring the axe down on private universities because the public universities are already on their way to becoming privatised. Over the past five years, we have seen that public universities have been hollowed out of any kind of defence or even any potential for defence. Now that they have been neutralised and sanitised, the private universities have to be the next target.”

The move from public to private has been the result of a systematic persecution of voices in public universities. He says further: “Because of the larger policies that have been played out in terms of non-filling of vacancies, along with public university spaces becoming increasingly intolerant spaces, a lot of good people who were either working as contractual faculties within the public university, have either moved to private universities or have moved abroad.” He cites Jawaharlal Nehru University, Delhi University, Hyderabad Central University, Allahabad University and IIT Chennai as instances of this unfolding tragedy. 

The “exodus”, as he terms it, naturally results in policies like the draft ordinance. He says, “People who have been students of public universities, people who have been trained to think about public initiatives, who have been taught to think about the order of the day, have all moved into private universities. Which is why there has to be a clamp down on private universities now.” 

It seems, on the view of these academics and writers, that the draft ordinance brings together communalism with full-blown privatisation. While the full implications of the law will only be gauged in practice, the draft ordinance sounds an ominous note in the increasingly dismal situation of the right to democratic dissent in India. Response to it must also be, therefore, to the larger onslaught on democracy and dissent.

Courtesy: Indian Cultural Forum

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The ordinance may be read here.

In response to the social media storm around the #5MarchBharat Bandh, earlier this  week, Human Resource Development Minister Prakash Javadekar said the centre was committed to restoring the reservation roster in educational institutions following a series of protests over the issue by various students’ and teachers’ organisations. They had been urging the government to bring an ordinance to restore the 200-point roster taking college or university as a unit for reservation in teaching posts.

Ironically the issue began with a shift in policy within the Modi regime itself. The University Grants Commission had announced in March last year that an individual department should be considered as the base unit to calculate the number of teaching posts to be reserved for the Scheduled Castes and Scheduled Tribes candidates, following an order by the Allahabad High Court in April 2017. The Supreme Court had upheld an Allahabad High Court order over reservation of SC/STs in the appointment of faculty members in universities in January.

The Supreme Court had last month dismissed a review petition filed by the Human Resource Development Ministry after its special leave petition against the court order was rejected by the top court. Mr Javadekar had said in the Lok Sabha on February 11 that the government can “bring an ordinance if its review petition filed in the top court is rejected“.
 

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Ordinances on The Enemy Property (Amendment and Validation) 2016 and the Payment of Wages (Amendment), promulgated on December 22 and 28 of last year, respectively, were also tabled in both the Houses on the first day of the Budget session. The Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016, promulgated on December 30 last year, in pursuance to the announcement by Prime Minister Narendra Modi on November 8 to scrap notes of Rs 500 and Rs 1000, was tabled in the Lok Sabha by Minister of State for Parliamentary Affairs S S Ahluwalia. He tabled the other two ordinances as well. In the Rajya Sabha, the three ordinances were tabled by Minister of State for Parliamentary Affairs Mukhtar Abbas Naqvi. The Ordinance on bank notes provides that the specified old currency of Rs 500 and Rs 1,000 will cease to be liabilities of the RBI from December 31, 2016 onwards. Further, these notes will no longer be guaranteed by the central government. These notes were demonetised on November 8, 2016 through a notification issued under the RBI Act, 1934. The notification had allowed these notes to be deposited in banks or post offices by December 30, 2016. In the Rajya Sabha, Minister of State for Home Kiren Rijiju also laid a statement on behalf of Home Minister Rajnath Singh explaining the circumstances that necessitated the promulgation of The Enemy Property (Amendment and Validation) 2016 on December 22, last year. The ordinance on Wages had been promulgated on December 28, last year. The ordinances were tabled after President Pranab Mukherjees address to joint sitting of both Houses.

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