Daily Editorial Analysis for 11th February 2020

A bizarre case & ‘Dissent as sedition’

Paper: GS-II

Topic: Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure.

For Prelims: Public Safety Act and its Consequences.

For Mains: Impact of Public Safety Act on Fundamental Rights. And the Grounds of Detention.

Why in news?

• The grounds on which the government has invoked the draconian Public Safety Act against former chief ministers of Jammu & Kashmir read like a fake WhatsApp forward. But the Union Home Ministry, no less, has peddled this misinformation to keep the two politicians in extended detention, raising serious questions about the bona fides of decisions taken by those in charge of the country’s internal security.

Grounds on which former CM’s charged:

• The material on which the two chief ministers have been charged is essentially based on statements made on and off social media, and actions taken by the two former chief ministers, plucked out of context, and presented as proof of their separatist credentials.
• For instance, CM’s ability “to convince his electorate to vote in huge numbers” is being held against him, for the purported reason that it shows he “enjoys the support of gullible masses”.
• Leave aside the evident contempt for people who elect politicians to power, the government seems to forget that it was the National Conference and the PDP that provided credibility to India’s decision, from 1996 onwa rd, to demonstrate to the world that it could hold elections in J&K, even those that were flawed, as a snub to separatism and the designs of Pakistan.
• The case against another former CM of Jammu & Kashmir is as, if not even more, absurd, embellished with comparisons to a medieval queen for “her dangerous and insidious machinations and usurping profile and nature”. CM’s tweets and statements, conveying to the Central Government, her then willing partner in the ruling coalition, that India would be left with no friends in Kashmir if Articles 370 and 35A were revoked, have also been twisted and taken out of their political context.

Public safety act (PSA):

• The Public Safety Act (PSA), 1978, of Jammu & Kashmir is an administrative detention law that allows detention of any individual for up to two years without a trial or charge. The Public Safety Act allows for the arrest and detention of people without a warrant, specific charges, and often for an unspecified period of time.
• But in some cases, the Act makes provisions for the detained person to be informed about the reason of custody, and also gives them an opportunity to make a case against their detention to the government. However, the detaining authority is not required to reveal any facts “which it considers being against the public interest to disclose”. This Act extends to the whole of Jammu & Kashmir.
• The PSA permits administrative detention for up to two years “in the case of a person acting in any manner prejudicial to the security of the state”, and for up to a year where “any person is acting in any manner prejudicial to the maintenance of public order”. A detention order under the PSA is issued either by the Divisional Commissioner or District Magistrate.

PSA (Amendment):

• After the amendments were made to the PSA in 2012, the detention of a person below the age of 18 was strictly prohibited under this Act.
• According to Section 22, “no suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith” under the PSA. An individual detained under the PSA shall be produced before the magistrate within 24 hours.
• The Advisory Board is a non-judicial body established under Section 14 of the PSA to review detention orders and determine whether there is sufficient cause for detention.

Consequences of the PSA:

• The PSA violates international human rights law and standards by providing for detention without trial while denying the possibility of judicial review and other safeguards for those in detention required under international human rights law.
• It also violates the principle of legality by defining offences so broadly as to allow security officials to detain individuals on extremely vague grounds including for exercising their rights to peaceful assembly and freedom of expression.
• The PSA allows authorities to delay providing the grounds or reasons of detention to the detainee.
• The PSA does not allow for ordinary access to a judicial authority. The PSA does not make any provision for judicial review of the grounds of detention or provide any appeal process to detainees. Instead, Section 15 of the PSA provides only for the detention order to be referred within four weeks of the date of detention to an Advisory Board headed by a sitting or former judge of a High Court or a person qualified to be one.

Section 16 allows the Advisory Board another four weeks within which to provide its report to the Government. The Advisory Board examines the case only once – in the initial stages of the detention. There is no process of appeal against the decision of the Advisory Board.

• Detention under the PSA is purely an administrative / executive exercise and falls completely outside the ordinary judicial sphere. There are limited safeguards within the PSA that could provide some protection to detainees if they were applied appropriately by the authorities.

Impact of PSA on Fundamental Rights & Power of DM:

• Article 22(a) of the Constitution states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice.
• Article 22(b) states that every person arrested and detained shall be produced before the nearest magistrate within a period of 24 hours (excluding the time necessary for the journey from the place of arrest to the court) and no such person shall be detained beyond this period without the authority of a magistrate.
• However, Article 22(3) (b) allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
• The Supreme Court has held that in order to prevent “misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards is mandatory and vital”.
• Therefore, the DM has to show that the detention order follows the procedure established by law; any violation of these procedural safeguards is to be termed violation of constitutional rights.
• Over the years, the Supreme Court has held that while detaining a person under the PSA, the DM is under a legal obligation to analyses all the circumstances and material before depriving that person of his or her personal liberty.
• It has also held that when a person already under police custody is slapped with the PSA, the DM has to record “compelling reasons” for detaining that person.
• While the DM can detain a person multiple times under the PSA, he or she has to produce fresh facts while passing the subsequent detention order.
• And all the material on the basis of which the detention order has been passed, the Supreme Court has held, should be provided to the detained person for making an effective representation, and the grounds of detention has to explain and communicate to the person in the language understood by the detained person.
• If these are not followed by the DM, it can be made the grounds, before the High Court, for quashing of a detention order.

Effectivity of PSA on Legislatures:

• The PSA has been used to detain both those against whom there are specific allegations of involvement in armed violence as well as those against whom the allegations do not relate directly to violence.
• A number of political leaders have been detained under the PSA in J&K, suggesting that the PSA is being used to disable the first and second tiers of the leadership of the major pro-independence political parties, taking them “out of circulation” and thereby preventing political mobilisation.
• The grounds of detention are often based on allegations that they have made “anti-national” statements and inflammatory speeches, although in a number of cases more serious allegations of instigating mobs to rioting and violence.
• It increasingly appears that the government has no plan for Kashmir that can be democratically or transparently implemented, and that it is counting on “national security”, or purported threats to it, to justify all actions.
• The J&K High Court has as good as abdicated its role by declaring last week it was “not a proper forum to scrutinise the merits of administrative decision to detain a person”. With this, the court, which even earlier quashed PSA cases only on procedural grounds, has effectively removed itself as the main remedy.
• The government must urgently release all those in custody in J&K, restore the Internet, and put its actions to an accountable, political test in Kashmir. Anything less will only set a troubling precedent for the entire country.
• The Union Government administration has now labelled dissent as sedition in J&K.
• The Jammu and Kashmir Reorganisation Act, passed by Parliament last year, nullified over 150 state Acts but kept the PSA, which is more draconian than the all-India detention legislation, even the Unlawful Activities Prevention Act.
• Six months on, detentions, denial and obstruction of communication continue, the state’s economy has lost thousands of crores, and now we are told that the state’s top political leaders are a threat to security on the basis of unfounded allegations.

Conclusion:

• Hundreds of people are detained under the PSA in J&K, many of them political activists and youth suspected of throwing stones at security forces. Instead of charging and trying persons suspected of committing offences in a fair trial in a court of law, the J&K authorities continue to circumvent the rule of law by resorting to the PSA.
• Repeal of the PSA would send a strong signal to the residents of J&K about the government’s commitment to the rule of law and human rights.
• Repealing the PSA and ending the system of administrative detention in J&K would also bring India into conformity with its international human rights legal obligations.

Prepared for the Coronavirus

GS Paper: III

Topic: Science and Technology- Developments and their Applications and Effects in Everyday Life.

Prelims: corona virus.

Mains: condition of Indian Public machinery to tackle health crisis like coronavirus

What’s the News?

Declared by the World Health Organization as a Public Health Emergency of International Concern, the novel coronavirus (nCoV) has infected more than 37,000 people and killed more than 800.

Coronavirus:

• Coronavirus is a member of a family of viruses that include severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS), which caused major outbreaks in 2003 and 2012, respectively.
• Corona viruses are named for the spikes that protrude from their membranes, which resemble the sun’s corona.
• Common signs of infection: Fever, cough, gastro-intestinal symptoms, pneumonia, severe acute respiratory syndrome, kidney failure, which can even lead to death.
• No vaccine or antiviral drugs available for these viruses. Symptoms can be treated.

Indian scenario

In the absence of specific drugs to treat the novel coronavirus, the Ministry of AYUSH has recommended certain Unani medicines for “symptomatic management of novel coronavirus” and certain Ayurveda and homeopathy medicines to help prevent coronavirus infection.

Factors responsible for high vulnerability:

• India ranks high globally in the burden of communicable diseases, a burden which causes approximately 10% of deaths in the country.
• Phase of rapid urbanization the country is going through—raising challenges to an already beleaguered and cash-crunched healthcare system.
• Human resources and healthcare infrastructure are woefully below the WHO standards.
• Major gaps in the public health system.
• Poor surveillance mechanisms and lack of public awareness.
• Existing diagnostic practices are time-consuming and expensive– diagnosis almost always suffers from lack of availability of stock, of pathologists and medical equipment.
• Poor nutritional standards and poor sanitation.

The situation is compounded by healthcare facilities without equipment, doctors and drugs, not to mention the poor nutritional status and poorer sanitation status of the population.

Steps taken:

The Indian government and health authorities have responded in a robust manner to contain the epidemic in various ways on the basis of available knowledge, but there are no grounds for complacency.

• While logistical challenges have been overcome by the Ministries, States, the military and civilians together, Indian scientists have shown their eagerness to attain world-class skills by rapidly developing diagnostics and treatment protocols.
• Screening at international seaports by the Shipping Ministry and border crossings by the Home Ministry is in place.
• Evacuation: The Indian diaspora (mostly students) who are stuck in Wuhan due to the travel ban by China have been evacuated quickly. Government provided the team of medical personnel to accompany the students’ home, and arranged for their health check-ups and quarantine at special camps.
• Temporary visa restrictions have been put in place.
• State governments:
• All the States have put together a robust system of contact tracing, community surveillance with community engagement, earmarking isolation facilities, sharing information, updating surveillance data, issuing daily health bulletins, skilling health workers with new guidelines, etc.
• The States bordering Nepal have even held special gram sabhas to empower people with information.
• India has also offered help to other countries in the South Asia region as part of its Neighbourhood First policy. It has extended technical assistance to several countries to set up testing laboratories.

Steps required:

A speedy local response is crucial in infectious disease management.

• Coordination and data-exchange from multiple stakeholders to rapidly detect infected cases treat the patients, and controlling and containing the spread of the disease.
• Safeguarding the front-line health workers who were most at risk.
• Organizing campaigns for information dissemination and education of the public to reduce panic and fear among the people.
• Strict surveillance and monitoring mechanism at its airports- The sensitive border this time is the one we share with China and it is important that a new enemy in the form of a deadly virus doesn’t come in.
• Innovations for diagnostics, detection, testing, notification and treatment have always been significant variables that make a difference. As it is extremely important to identify and track all neglected and communicable diseases.
• Using technology in diagnosis: Technology has helped to some extent. Most diagnostics can now be done using smartphones and simple apps loaded on them.
• Prevention: The huge burden of morbidity that exists in India is related in part to unsanitary conditions and practices, unsafe and unclean drinking water, and lack of awareness and information.
• The healthcare sector needs inputs from the public and the private sectors to conduct research on improved drugs and tests to help make it easier to treat people quickly.
• Vaccinations are among the most efficient and effective instruments for preventing diseases, operating primarily by providing acquired immunity and thereby preventing the easy spread of infectious diseases among large populations.

Coupled with the time and the resources needed for mass production and delivery, vaccines cannot be seen as the only solution during fast-spreading epidemics.

Health ATMs

Health workers with very little training can now reach patients in the most remote places.

Health ATMs are Private, walk-in medical kiosks with integrated medical devices for basic vitals, lab testing and emergency facilities, and staffed by a medical attendant.

Instead of large machinery and human resource requirements, most diagnostics now only need a pinprick. To detect deadly diseases like TB, for instance, the person needs to give just some sputum.

Concerns:

• Recommendation by the Ministry in using Ayurveda and Unani to prevent the infection is highly dangerous.
• It also runs against the current practice of quickly isolating even suspected cases to prevent the spread of the virus and providing them with symptomatic treatment if found infected.
• None of the medicines mentioned in the release has ever undergone any form of clinical validation.
• It is highly irresponsible to use the untested medicines to treat the virus, about which not much is known so far.
• Ministry hasn’t listed out the symptoms that people infected with the novel virus exhibit or mention which medicines should be taken to treat which symptom.
• It is also encouraging people to self-medicate, which by itself is alarming

Conclusion:

We should all observe good hygiene and sanitation practices to prevent infection, avoid crowding in public places and perhaps even replace the handshake with the traditional Namaste.

Mains question:

1. As fears about Wuhan coronavirus spread, is India battle-ready to identify, isolate and prevent the spread of this epidemic?
2. ‘’The Ministry of AYUSH has recommended certain Ayurveda and homeopathy medicines to help prevent coronavirus infection.’’ In the light of given statement critically analyze this response of the government against the coronavirus.