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20 February 2017 Question Bank


20th FEBRUARY 2017


(1 Question)

Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.

Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.




  • The Constitution protects citizens’ rights through two layers of safeguards: the legislature had to make a law, and then the courts could be called upon to test its constitutionality.
  •  In the course of its history, the Supreme Court has performed its role as the guardian of our fundamental rights with a debatable degree of success: upholding the law of sedition while striking down Section 66A of the Information Technology Act, upholding the law of obscenity while gradually liberalising it over the years, and so on.
  •  However, what is happening now is more serious: of late, the Court has begun to redefine its own role under the Constitution, transforming itself from the guardian of civil rights to a great, overarching moral and political censor.

Three instances

  •  Three recent instances have accelerated this nascent trend. Recently, the High Court of Bombay found that certain scenes in the film Jolly LLB 2 “defame” the legal profession. Despite the fact that the film had been cleared by the Censor Board, the Court set up an entirely fresh committee to “review” the film, and ordered four “cuts” to be made. The producers moved the Supreme Court, arguing that while the High Court could, admittedly, review the decision of the Censor Board, it could not create an entirely new censoring mechanism. However, the Supreme Court refused to intervene or to hear the producers on the merits of their case until the High Court had passed its final orders. When the Bombay High Court finally mandated cuts, the producers — understandably — saw little point in going back to the Supreme Court. Facing huge commercial losses (the film was set to release in four days), they managed to bargain and reduce the number of cuts. The film was released. The precedent that it set, however, is disturbing.
  •  While the Supreme Court saw nothing wrong with the Bombay High Court’s invention of a parallel censorship mechanism, it saw everything wrong with the fact that cinema halls were not playing the national anthem before every film. Acting upon a “public interest litigation”, and without any basis in existing law, in November 2016, the Court passed an “interim order” compelling all cinema halls to play the anthem. For a moment, forget about whether this is a good or a bad thing. Instead, consider the following: is it legal? It is constitutional? Is this kind of compelled performance of patriotism something India’s Supreme Court can impose upon India’s free and independent citizens? Somewhere, drowned underneath the drumbeats of patriotism, these crucial questions are going unanswered.
  •  And lastly, only last week, the Supreme Court passed yet more interim orders, in a case involving sex-determination tests. Ostensibly, the Court was acting under the authority of the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994, which prohibits advertisements regarding pre-natal sex determination.
  •  However, fuelled by a sense of moral outrage, the Court had been passing a series of “interim orders” (eventually likely to become final) that were progressively increasing censorship; in the latest order, it directed search engines such as Google to constitute in-house committees to “block” access to such websites, and (in continuation of previous orders) to do so by blocking search “keywords”. In one stroke, the Supreme Court vested vast censorship powers in unaccountable private committees, something that Internet scholars and activists all over the world have repeatedly warned against. More worryingly, however, the Court’s orders amount to making entire swathes of the Internet off-limits for everyone, no matter what the purpose: research, investigation, or even simple curiosity. Or, to put it even more simply: because advertising for sex determination is illegal in India, the Court will make any attempt to look it up on the Internet also illegal. That is how totalitarian societies react to the Internet. It is not how the Supreme Court of India is expected to react.
  •  The implications of these orders are frightening. Today, the Court wants Google to block access to search results involving the word “gender selection”. What will it be tomorrow? “Secession”? “Terrorism”? Or just about anything that the courts, in their wisdom, feel that Indian citizens cannot be trusted to read about?

Now, Supreme Censor?

  •  There are a few unifying features about these three cases. All of them were brought to the Court as “public interest litigation”. There is a tragic irony here: public interest litigation began as a movement to democratise access to courts. It discarded traditional rules of evidence, and vested vast powers in courts to “do justice”.
  •  In 2017, the very dilution of rules and the existence of vast powers have become weapons in the hands of courts to cut down rights. More importantly, however, in all these cases, the Court’s censorial actions bear a tenuous connection — if any — to “law”. In the Jolly LLB 2 and National Anthem cases, the courts do not even attempt to demonstrate that what they are doing is within the legal framework. In the Sex Determination case, vague references are made to the IT Act, but that law simply does not contemplate judicial orders that make the Internet off limits. In short, the Court’s actions have upended the careful balance that the framers sought to achieve in the Constitution: instead of our elected representatives making laws, which the Court then tests for constitutionality, the Court has now begun to make its own laws limiting, restricting, and suffocating speech. And this is only the tip of the iceberg: the Supreme Court is currently hearing petitions seeking to ban pornography, order a keyword-block for rape videos, and ban racy pictures on condom packets. The Court’s jurisprudence also has an impact downwards: last year, the Madras High Court ordered that the teaching of the Tamil epic Thirukkural be made compulsory in all schools — again, in the absence of any law whatsoever.
  •  In 2017, the Supreme Court has reduced us to passive subjects instead of active, thinking citizens. The Supreme Court tells us what we can watch and what we can’t watch. The Supreme Court tells us what we can search on the Internet, and what we can’t search. The Supreme Court tells us that we must be patriotic, and how, where, and when, we must be patriotic.
  •  To the framers of our Constitution, who fought for political independence from colonial rule on the Enlightenment principle of “have courage to use your reason”, and who trusted the Indian people to make that most important of all decisions — the decision to choose their own rulers — we can only say that the transformation of the Supreme Court into the Supreme Censor would have come as an unpleasant shock.
  •  Why India must keep charge of its bilateral engagement with its largest neighbour
  •  In mid-January, a week before he resigned as U.S. Ambassador to India, Richard Verma held an unusual dinner at his residence, inviting the Minister of State for Home Kiren Rijiju as well as the Sikyong, or Leader of the Tibetan ‘Government in Exile’. It was a small sit-down event, and was clearly no ‘accidental meeting’. The Ambassador could hardly have been working without the approval of the government, and if he had, the Ministry of External Affairs has chosen not to comment in the weeks that followed. What’s more, the dinner follows a series of interventions by American officials on India-China issues in the past few months.
  •  Mr. Verma made waves by becoming the first U.S. envoy to visit Tawang in Arunachal Pradesh in October 2016, a visit that drew a sharp response from the Chinese Foreign Ministry about “third parties” interfering.
  •  His visit followed comments by U.S. Consul General Craig Hall, during a visit to Arunachal, in April referring to the State as an “integral part of India”. The comment was accurate, and a boost for New Delhi’s claim, but diplomatically speaking, unusually forthright. Also in April, the government let in the U.S. federal government’s religious freedom body (USCIRF) commissioner Katrina Lantos Swett to attend a conference in Dharamsala for Chinese dissidents, including Tibetans, Uighurs and Falun Gong activists. And in June, Thomas Shannon , then U.S. Undersecretary of State, visited New Delhi, warning that China’s actions in the South China Sea were “madness” and its next “target” was the Indian Ocean.
  •  In the absence of a pushback from New Delhi, the impression created is that it is allowing, possibly even encouraging, the U.S. to be its voice on what are essentially bilateral issues between India and China. At a time when India and China have had major differences over a series of issues, allowing an external voice into this bilateral equation can only drown out India’s own.
  •  Unfortunately the U.S. is not the only country making itself heard in this equation. Australian and Japanese experts as well as Indian think tanks are increasingly articulating the need for their trilateral with India to go further, calling for a strategic “middle power coalition”. First, India is not, nor is it likely to be a treaty ally of the U.S., as Australia and Japan are. Second, such a coalition would necessarily be considered a front to counter Chinese maritime hegemony. While Indian naval presence would boost efforts to police the South China Sea, the other members of this coalition would hardly be able to help India on its most prominent frontier with China, the unresolved Line of Actual Control. In short, to allow these so-called middle powers to speak for India is a mistake equal to that of allowing any big power to do the same.
  •   Three-and-a-half fronts
  •  Today, India and China square off or have conflicts on what can be called three-and-a-half fronts. The land front, where they have fought one war in 1962; the maritime front, where the U.S. and its allies want India to take part in joint patrols to confront China’s naval ambitions; India’s neighbourhood, particularly Pakistan, where Chinese investment is altering bilateral equations; and the Tibetan front, which could be considered a half-front.
  •  Fortunately, despite the lows of the past year, including the impasse where India singled out China as the “one country” inhibiting its progress into the Nuclear Suppliers Group, New Delhi and Beijing have kept their bilateral engagement steady. As Foreign Secretary S. Jaishankar heads to Beijing this week for the newly created Strategic Dialogue, it would be hoped that relations will be brought to an even more steady bilateral keel, especially as India charts its course in the foreign policy-scape rocked by the uncertainties of the new U.S. Presidency. It would do well by following the Gandhian principle that “true power speaks softly, and has no reason to shout.” Nor does it need to employ the voice of others, or use frivolous pinpricks when serious issues are at hand.
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