Current Public Administration Magazine (SEPTEMBER 2021)

Sample Material of Current Public Administration Magazine

1.Accountability & Responsibility

  • Linking Aadhaar with voter ID is unconstitutional

This week marks three years since a constitutional bench of the Supreme Court (SC), in Puttaswamy II,shrunk the Aadhaar project to contain its significant privacy risks. Justice D Y Chandrachud’s dissenting opinion was less sanguine about the possibility of containing the technological behemoth. His dissent, which found the Act and project unconstitutional, noted: “The Aadhaar project has failed to account for and remedy the flaws in its framework and design which lead to serious issues of exclusion… Constitutional guarantees cannot be subject to the vicissitudes of technology.”

The government, however, continues to violate the constitutional “red lines” drawn by the judgment. Within a year of the verdict, it amended the Aadhaar Act to permit the use of Aadhaar authentication for telecom and banking services, which the SC had categorically struck down. The government claimed that the Court’s only objection was the lack of a law — when, in fact, it held the expanded use of Aadhaar, especially by private entities, was a disproportional intrusion into the right to privacy. The 2019 amendment, which is pending challenge in the SC, permitted the government to expand the “purposes” that Aadhaar authentication can be used for. In 2020, the government notified the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020 (Good Governance Rules) to broaden the scope of Aadhaar authentication.

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2. Indian Government and Politics

  • State of parliamentary democracy in India

If one wants instances of callous treatment of the electorate and parliamentary democracy, there is no need to look far. The BJP and the Congress have been guilty of engineering such instances more recently, and that too, in a similar fashion: Both the parties (others are no exception) have taken recourse to the farcical instrument of “cabinet reshuffle”, including change of leadership. The BJP did it in Karnataka, Uttarakhand and UP besides going for a wholesale makeover in Gujarat, while the Congress has done this in Punjab. Some see these as smart moves to ward off the unpopularity of incumbents and clever use of the caste calculus. To be sure, that is how these developments are touted by the parties concerned.

The romanticising of the tactics of the two parties is one reason these moves are not read appropriately and discussed. But it is also possible that we have stopped worrying about matters of principle and long-term implications, and have become hardened realists who do not worry about norms and nuance. Nevertheless, it is worth noting some of the nagging issues these political moves involve.

One such issue is the relation between state units and the central leadership. Both the Congress and BJP have adopted a high command structure of decision making. In the BJP’s case, the authority of the high command stems from its ability to win elections. All office holders are obligated to the high command on account of this. Moreover, the BJP’s high command resides outside of party headquarters — it would be a bit of a political comedy to believe that the party president and/or general secretaries constitute the high command. That de facto high command has created an aura of invincibility around itself. It has won not only two parliamentary elections in a row but a string of decent performances in state elections are also attributed to it. This has produced the centralisation of authority that the party imitates from the Congress of the Indira era. But as in the Yeddyurappa episode, tensions between the high command and self-made state leaders are bound to become a problem for the party.

3.  Social Administration

  • Caste Census in India

A continuous and unabated push towards including caste in the forthcoming census enumeration has finally ended with the Union government position to the Supreme Court stating that it has decided as a matter of policy not to enumerate caste-wise population other than Scheduled Castes and Scheduled Tribes. That a decadal exercise, which began 150 years ago, has faced a discontinuation with the pandemic is damaging enough, which will require reconstruction for the year 2021. We are also not sure how the Registrar General and Census Commissioner, who could not conduct the census on time, will be able to add any other additional questions including enumeration of caste. The Election Commission did its job in conducting elections during Covid-19.

The census, the primary source of population data with all its distinct virtues of complete enumeration and levels of disaggregation to the lowest possible administrative unit, has seen gradual improvement in the quality of its content over time. Such improvement in quality has been possible with progress in the technology of data collection on the one hand and computerised validation on the other. In the midst of this uncertain environment of conducting a census that is unavoidable, imposing the collection of caste information may dilute the exercise at the very least and send wrong signals regarding its purpose. Considering the urgency of this exercise, there need to be sincere efforts towards putting systems in place to conduct the population enumeration at the earliest and providing an update of India’s population dynamics in comparable terms to be read against the past. The absence of population enumeration and its discontinuation can have implications for gauging the evolving changes as well as its prospects.

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4. Current Topic

  • Gandhi as Philosopher

It is not often that Gandhi is portrayed as a philosopher. To me, Gandhi is as significant as the Buddha of the Nikayas and the Socrates of Plato’s early dialogues. These three men are unique because, like Confucius of China, they can be credited with inventing philosophical ways of life that were led by ethics as opposed to others led by metaphysics. The Buddha’s philosophical way of life, within a few centuries, got morphed into two different “religious” forms of life — Theravada and Mahayana. Socrates’ philosophy, however, did not suffer the same fate. Hellenistic philosophy, like Stoicism, is still capable of inspiring people the way Confucianism does in China. Unfortunately for Gandhi, the understanding that he was a philosopher is only slowly getting recognised. The credit for recognising Gandhi as a philosopher goes to two philosophers belonging to the Analytic tradition of philosophy — Akeel Bilgrami and Richard Sorabjee. The latter is a historian of Greek and Hellenistic philosophy.

My position is, however, slightly different from that of these two Analytic philosophers. Philosophy was initially practised only in three civilisations — Chinese, Greek and Indian. In these civilisations, philosophy functioned as a way of life distinct from other ways of life that were rooted in a belief in supernatural powers. But even the philosophical ways of life practised in those ancient times could be divided into two categories — a metaphysics-led philosophical way of life and an ethics-led philosophical way of life. Barring the philosophies enunciated by the Buddha, Socrates and Confucius all other philosophies propagated metaphysics-led ways of life.

The basic difference between these ways is that in ethics-led philosophy, the attempt is to transform the practitioner from his/her baser state of being to an ethically higher state of existence and in the process making him/her, at least in the case of Socrates and the Buddha, psychologically self-sufficient. The Buddha called such a condition “Nirvana”. Socrates articulated it by saying “a virtuous person cannot be harmed” to indicate the disappearance of selfishness-induced fears in the practitioner.

5.  Indian Administration

  • IT rules fail the test of constitutionality

Much distance has been covered since February 25, when the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified. The IT Rules were promised as a panacea for the myriad harms caused by social media platforms, digital news media outlets and online video streaming providers. A joint press release issued on the same day by the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting stated they are, “a fine blend of liberal touch with gentle self-regulatory framework”. Such claims did not amuse legal experts, policy professionals, industry bodies and even UN Special Rapporteurs as its provisions undermine the rights and freedoms of internet users. In the interest of brevity, an analysis of the IT Rules has been avoided as it has been published earlier (‘Accountability with a cost’, IE, February 26).

Many of the concerns expressed have, over the months, found their way to court. Today, there are more than 18 petitions challenging the constitutionality of the IT Rules in various high courts, with interim orders emerging in three cases. These judicial determinations contain a clear acknowledgement of the dangers posed by the IT Rules and merit a closer examination. The first order of significance was issued on March 10, 2021 by the Kerala High Court in a petition filed by LiveLaw Media which is an online publisher of legal news and analysis. It restrained any action against the petitioner. While a modest victory, the order effectively stays a regulation framed by the central government. Such protections by courts are not made ordinarily, preferred only in instances where a clear injury is evident.

A more extensive determination has been made by the High Court of Bombay in clubbed petitions filed by the entity operating the digital news media platform, The Leaflet, and by journalist Nikhil Wagle. By an order on August 14, 2021, the court has stayed two core provisions of the IT Rules that govern online news media platforms. The order neuters sub-rules (1) and (3) of Rule 9 that required compliance with a “code of ethics” that would be applied by a three-tiered structure presided over by the Ministry of Information and Broadcasting. The order reads like an objective determination, fairly considering the submissions of the government as well as the doctrine of constitutionality for initially presuming the validity of the IT Rules. However, this is cast aside as the court finds that the provisions for media governance go far beyond the allowance permitted by the principal provisions of the Information Technology Act. The court reasons that the compliances under the “code of ethics” either lack the force of law, or have a distinct statutory framework such as under the Cable Television Networks (Regulation) Act. Beyond such technicalities, the larger danger of the IT Rules glares through when the court observes that, “people would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.”

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