EDITOR SPEAKS:LEGIT ORIGINALS

THE NATIONAL SECURITY LAW

Charishma Sekhar K (Jr. Associate Editor, Legit)

We all know that since January 2020, people across the world withstanding unforeseen traumas and collisions. Besides all these, we have been hearing about the "The Hong Kong National security law" which came into effect on June 30, 2020, during the 23rd anniversary of Hong Kong city's handover to China from British rule. Why did China do this? We all know that Hong Kong differs from other cities in China. Until 1997, it was under British rule as a colony but later it returned to China. When it came under the control of China, Hong Kong carries some autonomy and people have more rights under a unique agreement - a mini-constitution called "basic laws" and the so-called principle of "One Country, Two Systems ". In absolute terms, this principle says that Hong Kong has its legal system and borders, and rights including freedom of speech, press, and assembly are protected. Under the same agreement, Hong Kong can pass their national security law - this was set out in Article 23 of the Basic Law - but it never emerged because of its defame. Also, those liberties and autonomies under the Basic Law expire in 2047, and also it is not clear about Hong Kong's status in the future. Now, unexpectedly things have been changing between Hong Kong and China. Last year in 2019, the protest over the extradition law turned violent and evolved into a broader Anti-China and pro-democracy movement which has grabbed global attention. And this year, the clashes between police and activists becoming are rising violently. In April, Hong Kong police arrested 15 high profile, pro-democracy activists, for taking part in unauthorized assemblies. During this pandemic, the street protestors have mostly died down, although some tiny demonstrations including a singing protest in malls, youngsters in airports have initiated again as restrictions happen slowly relieved tension.

The said law was passed in China's standing committee of the NPCSC (National people's Congress) without the contribution of local institutions. This includes 66 articles which kept under secret and cover four categories of criminal activities namely, “Secession, terrorism, subversion, and collusion with foreign, with external forces or national security”. The law also grants China more authority to execute itself in the affairs of Hong Kong. This law provides Beijing with the power to mould life in Hong Kong, it has never had before. But critics say that the law curtails the political freedom of Hong Kong citizens.

Things to Know Under the Provision of National Security Law:

● Criminal acts such as terrorism, subversion, secession, and foreign collusion including inciting Hong Kong residents hatred of the Chinese government can receive a maximum life sentence or long-term imprisonment of 10 years and above for offences in all categories. ● With this law enforcement, Beijing will establish a new security office in Hong Kong. ● Damaging public properties and transport facilities would be considered as terrorism. ● Management of foreign NGOs and any other news agencies will be strengthened. ● The law states that some “complex” trials will be held behind closed doors and eventually judgments would be made public. ● The media and all forms of public comments will be monitored by the government. ● Companies that violate the National security law will be fined and convicted. ● People who take the part or hold the objective of splitting the country would be barred from standing in any Hong Kong election. ● Hong Kong's chief executive will have the power to decide judges to hear national security cases. ● Most importantly, Beijing will have exclusive authority over Hong Kong, not any Hong Kong judicial or political body can involve. ● People who oppose or stand against the law will be wire trapped and put under surveillance. ● The law will apply to a non-permanent resident who doesn't belong to Hong Kong. ● The law also takes control over education, journals, and social media. Beijing has intimated Hong Kong people, to respect and protect rights and autonomy while protecting national security. However, many people still have a fear of losing freedoms with this law. Under the handover agreement “Hong Kong” is supposed to have a guarantee to the freedom of rights. The basic laws cannot be applied in Hong Kong which doesn't list in a section called Annex III. But there is an exception. China's National people's Congress can add and remove laws listed in Annex III of the Basic law constitution. This can be done only after discussing with the Hong Kong government, but it is supposed to restrain the laws relating to defence and foreign affairs and also the matters beyond the limits of the autonomy of the region as designated by this law. Whenever any law is added to Annex- III, they must be either passed by the Hong Kong government or issuing a legal notice in the Government Gazette by Hong Kong's chief executive.

According to Human Rights Watch, the new law was enacted marking the first time a Chinese law bringing criminal liabilities without any legislative process. But China's official state-run news agency has justified in a commentary that "With hostile forces in and outside Hong Kong colluding with each other in recent years, the absence of relevant legal system and enforcement mechanisms … has created major risks for China's national security,” and also said that the law is meant to focus on protecting and punishing activities “that harshly undermine national security”. People in Hong Kong will be able to survive in a safe environment under the protection of the national security law.

Since June till today, the protest has been going on and the Chinese government has been imposing several constraints curtailing the freedom of Hong Kong dwellers. This shows how the law and its usage contravene international human rights laws and standards. To be honest, the Hong Kong national security law failed to protect human rights. The keys aspects of this law built anxieties among people and hence pushed them at risk of criminal prosecution. Within an hour after the law passed, many people of Hong Kong deactivated their accounts who were active in social media by sharing about the protests. This law is another example to express political opposition using the concept of “national security”. It is recognized that every government has the right to protect its citizens and specific security concern.



ALL ABOUT THE NEW ESSENTIAL COMMODITIES ACT


VIJAYALAKSHMI RAJU

(Digital Outreach Executive cum News Editor)


Union Finance Minister Mrs Nirmala Sitharaman in the third tranche of the stimulus package has taken pulses, cereals, edible oil, oilseeds, onions, and potatoes out of the Essential Commodities Act. It allows the value chain participants, such as processors, millers, importers, exporters, traders to hold as much stock of these commodities as they want to. There is a rider that the Essential Commodities Act can be imposed on these commodities under exceptional circumstances.

Essential Commodities Act


Law gives the Centre and the State governments, the power to regulate the production, supply, distribution and prices of commodities. The Act came at the beginning of 1955 when the economy was dealing with the shortage of food and famine. However, it does not serve them any purpose in the present scenario. During May 2020, the Finance Minister of India suggested that the Act will be amended and the stock limit will be imposed only under exceptional circumstances such as wind or other natural calamities. There will also be no stock limit for processors and supply chain owners, which is based on their capacity and for exporters it is based on the export demand. This also puts an end in some punitive measures. They regulate agricultural products such as pulses, onions, potatoes, cereals, edible oils, and oilseeds with the aim of better price realization for farmers. On consideration, the Act has a major impediment in the group of the agricultural sectors such as traders are scared to buy more on the fear of imposition of stock holding limits at times.


The investment in warehouse infrastructure has been slowing and becoming low as there could be rider by authorities for holding excess stock. The Agri commodity market participants have been vocal about the harassment by the authorities under the Act. The NITI Aayog has called the Essential Commodities Act as a hindrance to farm exports. The economic survey 2019 - 2020 called the Essential Commodities Act as one of the anachronistic legislations. Various governments in India have been trying to help farmers do the subsidy programs, loan waivers, direct benefit transfer, and then Act like the Essential Commodities Act disincentives investment in warehouses and storages.

Under the Essential Commodities Act of 1955, the central government thinks that it is important to maintain or increase the supplies of any essential commodity or to make it available at fair prices. So, it can regulate or prohibit the production, supply, distribution, and sale of the commodity. The essential commodities which were listed out in this Act are foodstuffs including edible oils and oilseeds, drugs, fertilizers, petroleum, and petroleum products, but the centre has the power to add or remove any commodity in the interest of the public and that is what it has done with masks and hand sanitizers.


In the past, the Essential Commodities Act (ECA) was mostly involved to control the price rise on food products. When the prices of any of these commodities rise, the government imposes stockholding limits to prevent hoarding, confiscates the stocks of violators, and imposes the penalty.


Why is ECA important now?


In recent years, there has been an argument that the Essential Commodities Act was a draconian and it did not suit for times when farmers faced problems of plenty rather than scarcity. The economic survey 2019 - 2020 argued that it hampered the remunerative prices for farmers and discouraged the investment in storage infrastructures.

In the context of a crisis like the current one, the Essential Commodities Act seems to serve a purpose. Bringing masks and sanitizers under the essential commodities will enhance the availability of these products to the public at a fair price. The producers have been urged to manufacture these up to full capacity over 3 shifts.


The government can take action against hoarders, speculators and those who are involving in jacking up prices or black marketing. Besides this, quota restrictions on raw material holdings can be relaxed. The MCA has asked all the state governments to issue licenses and permit hand sanitizer manufacturers to store ethanol and extra neutral alcohol, which is ENA without any quota restrictions. The Indian Sugar Mills Association and All India Distilleries Association have asked to ensure that ethanol and ENA are made easily available to producers. Reports also state that the prices of ethanol and ENA cannot be increased till August 30 and it will be sold at the price levels as on March 5 this year.


ECA and its list


The Essential Commodities Act is an act of Parliament of India which was established to ensure the delivery of certain commodities or products, the supply of which is obstructed owing to hoarding or black marketing would affect the normal life of the people. It also includes foodstuff, drugs, fuel, petroleum products, etc.

The Essential Commodities Act that was enacted in the year of 1955. Since then it has been used by the government to regulate the production, supply, and distribution of a whole host of commodities and declares 'essential' to make them available to consumers at a fair rate.

Additionally, the government can also fix the Maximum Retail Price (MRP) of any packaged product which declares it as an essential commodity. The list of items under the act includes

Drugs

Fertilizers

Pulses

Edible oils

Petroleum and

Petroleum products,

The centre can also include the new commodities as and when the need arises and can also take them off the list, once the situation improves.


Conclusion


The ordinance did not expressly define the ‘extraordinary circumstances’ faced by the community. The uncertainty of legislation gives rise to many queries on the entire exercise of introducing the particular provision of the Essential Commodities Act. The majority of farm holdings in India are small and marginal.


Before witnessing another locust attack that may occur shortly, the El Nino phenomenon has hit Indian agriculture hard in the past times. Giving the time of this amendment ordinance, it is likely to benefit the big traders, big corporate, and MNCs, but not the farmers directly. Our policies must ensure sustainable farm growth taking this into consideration factors like climate change, land holdings, consumer capacity, and farmers’ interests.

INDEPENDENCE OF JUDICIARY- A RIGHT OF PEOPLE OR A RIGHT OF JUDGES


Law of contempt asynchronous with the Indian democratic system?


ARUN KUMAR. R

(Associate Editor, Legit)

For the past month, we as students of law never crossed a day without hearing the issue of contempt of court. Credit goes to the tweets of senior advocate and human rights activist Prashant Bhushan and the guardian of our constitution. It is not correct to say that this matter has come to limelight only now, but history has a lot to say supporting this, starting from Arundhati Roy's case to the very recent Justice CS Karnan issue.


Inherence and Intolerance


The apex courts of India and concerned states derive their power to punish contempt from the Constitution of India under Articles 129 and 215 respectively. And to supplement this, the Contempt of Courts Act 1971 provides the procedural aspect of the same. So this makes it clear that the court not only has the inherent power but also coupled with the suo moto one on contempt issues. Justice VR Krishna Iyer has slammed the later in his words, “the law of contempt has a vague and wandering jurisdiction with uncertain boundaries. Regardless of the public good, it may unwittingly trample upon civil liberty.” In the tweet case, the apex court held that prior consent of the Attorney-General of India is not required to suo moto initiate the contempt power of SC and added that the matter is only between Court and Contemnor. The intolerance is evident from another perspective that the Apex court was not ready to take up urgent or time-barring matters like Migrant issue, Electoral bonds, Article 370 issue and habeas corpus filed for the detention of J&K leaders, etc. While it took less serious matters like framing issues on religious rights in the Sabrimala review case and this contempt case.


In the name of ‘Public Interest’


In recent times, the judiciary has invoked people’s tag to justify contempt. Is it right to punish the criticism in the name of people? In the two tweet judgment, the term ‘people’ has been repeated 27 times, this shows how the public has been used as a cover-up for the court’s action. On 27 June 2017 protest was carried out holding ‘Not my name’ boards against the courts in response to the filmmaker Saba Diwan’s Social media issue. Some critics rise that this action is against the fundamental freedom of speech and expression enshrined under Article 19(1) (a). But it was held in the case CK Daphtary v. OP Gupta (1971) that the contempt provisions are a form of reasonable restriction limiting the above-said freedom. Can this cover-up be brought under article 19(2)? If yes, it again leads us to the title of this article; right to people or right to judges.


So it is important to draw a line between the judges and the judiciary. To be clearer, a distinction must be made between the criticisms against the judges personally and those motivated against the administration of justice. Two things must be kept in mind in doing so; if a comment is made against the functioning of the judge, it would have to be seen whether the comment is fair or malicious. On the other hand, if it is made against the judge individually, the court would consider whether such a comment seeks to interfere with the judges administratively or simply on the nature of libel or defamation on the concerned judges. So it is not contempt if the criticism impacts the personal capacity and not in discharge of judicial function. No protection is available to judge from statements against individuals and he is personally liable. One instance is where the Allahabad HC in Brahma Prakash Sharma case (1953) did not find MH Beg guilty of contempt for his comments, “HR Khanna’s famous dissent in the ADM Jabalpur case 1976 does not contribute to the law but only to his popularity.”


Would silencing harbours respect?


The judiciary has always tried to command respect but never demanded it. Respect and dignity could not be earned from citizens on the threat of contempt. CJ PB Gajendragadkar 1964 judgment quoted that, frequent or indiscriminate use of contempt power by judges adversely affect rather than sustain their dignity or status. In a U.S. case Bridges v California 1941, it observed that an enforced silence would probably engender resentment, suspicion and contempt for the bench, not the respect it seeks.


Reforms


With the 2006 amendment to the Contempt of Court Act 1971, came up with the inclusion of Truth and good faith as defences in a contempt case. Further in its 274th report, the Law Commission of India was asked to recommend the amendment to be made in the 1971 Act. They concluded there advice saying that amendment was not necessary for the following reasons; high contempt cases pending before constitutional courts; though foreign countries abolished punishing the scandalizing, they hold another law to punish the same; the source of contempt power is inherently derived from the Constitution and Act only provides procedure, so the basic structure of the constitution can’t be amended; narrowing the definitions of the notion ‘contempt’ would impact on the sub-ordinate judiciary and would lead to ambiguity in the interpretation.


Arguments


On coming to the tweet case, the 3 Judge-bench lead by Justice Arun Mishra found the activist guilty of contempt on the 14th of august. It held that any attempt to destabilize Indian democracy with malice intend should be dealt with an iron rod in the public interest and the magnanimity of court should not extend to the weakness. It observed that when a scheme was on to damage public confidence in Judiciary, those interested in fearless justice should stand firmly and the court could not ignore the disrespect and disaffection created by scurrilous tweets. On the lighter side, the court expressed that punishing lawyers was an extreme measure, nevertheless, necessary to keep the ‘stream of justice pure, serene and undefiled’.


The Contemnor contented that comments against the judiciary must be taken as a criticism and not as contempt and he added that CJI is not a court so his tweets must be taken personally, rather than administratively. One of his tweets touched the concern regarding how a CJI conducts himself during the vacation and the other tweet was regarding how 4 CJIs have used or failed to use their power as “Master of Roster” to allow the spread of authoritarianism, majoritarianism, stifling of dissent, widespread political incarceration, etc. Though he regretted how he has been misunderstood, he refused to apologize before the court for his actions.


Conclusion


As rightly observed, in the Mulgaokar judgment (1978), “the dog may bark, the caravan will pass. The court will not be prompted to act as a result of any easy irritability.” The courts hold a balance, where equilibrium has to be maintained between the Rule of law and the protection of freedom of speech and expression, as both are paramount for running a modern liberal democracy. It is no doubt that the organs of government must strive hard to gain public confidence. Though our Indian Judiciary is not directly accountable for its people, only for the law, it is indirectly made responsible for the people as it is a constitutional organ. So, the administration of justice to needs public confidence, not by way of threat, but by way of its duty.

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