CURRENT AFFAIRS – 18/05/2023

Two Constitution Benches of the Supreme Court of India delivered important judgments last week. The first case decided that the Delhi government headed by the Chief Minister — and not the Lieutenant Governor appointed by the central government — will control civil services working for the Delhi government. The second case involved the formation of the current government in Maharashtra following the “split” in the Shiv Sena party.

Both judgments, which were unanimous, were authored by the Chief Justice of India; they explain the constitutional position clearly. However, the Maharashtra judgment contradicts the core principle applied in the Delhi case. The problem arises from the fact that the Maharashtra judgment adheres to the Tenth Schedule of the Constitution (the anti-defection law), which, at its heart, is incompatible with the structure underlying parliamentary democracy.

The issue in the Delhi case was to determine whether the civil services in the Delhi government would be accountable to the Delhi cabinet or to the Union government. Delhi is a Union Territory with a legislature, and the demarcation of powers is spelt out in Article 239AA. The Supreme Court stated that parliamentary democracy implied a government accountable to the people. The judgment explains that this entails a triple chain of command: civil service officers are accountable to Ministers; Ministers are accountable to the legislature; and the legislature is accountable to the electorate. Severance of any link of this triple chain would be antithetical to parliamentary democracy. Therefore, the civil services will have to report to the Delhi Cabinet.

The Maharashtra judgment dealt with a sequence of events that included several petitions under the anti-defection law. Two factions of the Shiv Sena had issued contradictory whips, and the Maharashtra Speaker had recognised the whip of one of the factions (which claimed more Members of the Legislative Assembly) as representing the party. One of the questions considered by the Court was to determine which faction had the right to appoint the leader and whip of the legislature party — and, therefore, have the power to issue binding directions on every member of the party in the Assembly.

The Court ruled that the Tenth Schedule makes a differentiation between the legislature party and the political party. The legislature party includes all MLAs/Members of Parliament belonging to the political party. It determined that the power to issue directions was with the political party, and not the legislature party. Therefore, the person in charge of the political party (who may not be a member of the legislature) would control every vote of the MLAs/MPs of that party. Failure to adhere to such direction by any MLA/MP would lead to disqualification.

Thus, this judgment further entrenches the power of the party leadership over the legislature. It reinforces the idea that the MP/MLA is not accountable to the electorate but only to the party that fielded them in the election. In doing so, it breaks the triple chain of accountability, which is an underlying principle of the Delhi judgment.

Indeed, the judgment decries the possibility of legislators being elected on the basis of their affiliation to a party, later disconnecting with that party. It goes on to say that the Tenth Schedule guards precisely against this outcome. Again, this position is different from that taken in the Delhi judgment. There, the Court states that the government is assessed daily in the legislature through debates on Bills, questions raised during Question Hour, resolutions, debates and no-confidence motions. If the legislators of the party with a majority in the House have to abide by the directions of the political party, the very idea of a daily assessment by the legislature becomes meaningless. The party leadership controls the vote of its legislators on each issue, and, therefore, the government is guaranteed to win every vote, including a no-confidence motion, unless any legislator is willing to forgo their membership in the House.

The judges had no choice but to make such contradictory conclusions. In the Delhi judgment, they were clarifying the gaps in the Constitution by using standard interpretation methods. In the Maharashtra judgment, they were bound in their interpretation by the clear language of the Tenth Schedule. The problem lies in the very idea of the anti-defection law, which contradicts the democratic principle of accountability of legislators to their voters.

The anti-defection law is based on the assumption that any vote by an MP/MLA against the party direction is a betrayal of the electoral mandate. This is an incorrect interpretation of representative democracy. While party affiliation is an important element in elections, it is not the sole criterion for voters. The Supreme Court has recognised this principle in the case where it mandated that all candidates must disclose information related to their criminal record, assets and liabilities, and educational qualifications in order to allow voters to take an informed decision. If voters only cared about party affiliation, why should the other characteristics of candidates matter? Indeed, election results also contradict the assumption that voters look only at the party affiliation of candidates.

For example, in Karnataka, by-elections were triggered due to the defection of several Congress and Janata Dal (Secular) MLAs in 2019, just months after the general election; 13 of the defectors contested on a Bharatiya Janata Party ticket, and 11 of them were re-elected. Similarly, in Madhya Pradesh, 15 of the 22 MLAs who defected won the ensuing by-elections. The electorate thus endorsed the candidate and not the original party that had won a couple of years earlier.

The constitutional design of a parliamentary democracy envisages a chain of accountability. The accountability of the government to the legislature is on a daily basis, and legislators have to justify their actions to their voters in every election. The anti-defection law upends this design by breaking both links of the chain. Legislators have to obey the party diktat even if that comes in the way of holding the government accountable. In turn, they can easily take refuge in their lack of freedom to make decisions if their constituents question them. This is clearly a violation of the central principle of parliamentary democracy, which is part of the basic structure of the Constitution.

In 1992, a five-judge Bench of the Supreme Court ruled that the anti-defection law did not violate the basic structure. A re-examination of this issue would require a larger Bench.

The Maharashtra judgment has referred one aspect to a seven-judge Bench. The question is whether a Speaker facing a notice of removal can decide on disqualification petitions. Two five-judge Benches have reached opposite conclusions on the Speaker’s ability to make independent and impartial decisions. The seven-judge Bench, while hearing that case, must expand the question to examine whether the anti-defection law violates the basic structure. It is time to reclaim the accountability of governments to the people.

Achapan (70) lives with his wife, daughter, and his grandson atop a hill in Wayanad, Kerala. He built his two-room house through a State housing scheme for Scheduled Tribes. He worked as a daily-wage labourer till he had a stroke at his work site in 2009. Since then, he has had multiple episodes of hospitalisation. For follow-ups and medicines, Achapan walked at least 12 km through the hilly terrain to the nearest government medical facility. In 2018, a Wayanad-based community palliative care organisation arranged weekly home visits by a nurse and a volunteer team for Achapan. They provide free medicines and doctor visits when required. In these ways, the community organisation provides ‘total care.’

The World Health Organization (WHO) considers palliative care as an approach to improve the quality of life of patients and families confronting life-threatening illnesses such as cardiovascular diseases, cancer, and chronic obstructive pulmonary disease. The 2018 Lancet Commission on palliative care and pain relief refers to such conditions as ‘serious health-related suffering’ that requires physical, social, spiritual, and emotional support alongside medical intervention. More than 80% of individuals who experienced serious health-related suffering in 2015 were from low- and middle-income countries. As a middle-income country with an ageing population and a growing non-communicable disease burden, how equipped is India to deal with large-scale serious health-related sufferings? Quite poorly as India struggles with approximately 4% coverage for palliative care unevenly anchored around mega cities. In sharp contrast with the rest of India, Kerala’s palliative care model is a global exemplar in inclusive care infrastructure.

In 1993, Dr. M.R. Rajagopal and his student, Dr. Suresh Kumar, experimented with a pain relief clinic for terminally-ill cancer patients at the Government Medical College, Kozhikode. This experiment mushroomed over the years into more than 400 community palliative care organisations across Kerala, driven by volunteers and nurses, with doctors’ home care on a need-basis. Volunteers from diverse social groups looked beyond terminal cancer, including what was then considered unconventional conditions for palliative care such as spinal injuries, HIV/AIDS, and geriatric cases. Volunteers also understood the social suffering of families in their neighbourhood when confronted with such conditions. An early volunteer reflected that “where doctors know symptoms, volunteers understand suffering”. The community identified that “the patient’s suffering is 20% medical, 80% social” and reframed care. Community ownership brought in home-based ‘total care’, i.e., medical, social, financial, bereavement, and rehabilitative support for patients and families. Kerala was experimenting with a community model distinct in scale and scope from hospital-based approaches in the rest of the world.

By 2004, community organisers felt the need for the State’s involvement. What began as the Pariraksha project with Malappuram panchayats cascaded into a landmark palliative care policy introduced by the Left Democratic Front government in 2008. Over time, all 14 districts provided palliative care, with mandates at the primary, community, and tertiary levels.

Certainly, an evolving healthcare field creates new challenges. For example, metrics for evaluating palliative care delivery are primarily developed for hospitals and hospices in the Global North. Public health integration remains uneven across Kerala. Nevertheless, through 30 years of this evolving model, we now see the societal consequences and spin-offs. As per the 2018 Lancet report, Kerala has a network of over 841 of India’s 908 palliative care sites — one of the largest palliative networks in the world.

Further, community mental health initiatives have spun off from Kerala’s palliative care movement.Kerala mobilised palliative networks for relief work during the 2018 floods. It was arguably the only Indian State where the government routinely referenced palliative care during COVID-19 briefings.Overall, Kerala’s community palliative care model merits attention as a global exemplar, not just for healthcare, but also for broader social and public innovations.

Firstly, only 14% of patients who need palliative care worldwide receive it, highlighting the limited access and affordability of hospitals and hospices. Kerala’s community model covers more than 60% of the patients. The Institute of Palliative Medicine in Kozhikode and Pallium India in Thiruvananthapuram are nodal organisations offering training informed by the community approach for doctors, nurses, and volunteers. Second, public health palliative care integration debunks myths about the “impossibility of public health infrastructure in India” or that “the State cannot deliver healthcare”.

The State and the community created possibilities for the private sector, creating a ‘crowding-in effect.’ Here, private healthcare must offer better standards than public and community organisations for patients to choose the former. Finally, the Kerala story exemplifies how diverse groups of people — across religious, caste, and gender divides — forged solidarities to create care infrastructure. These community organisations are strong reminders of how people organise across differences.

The story so far:

On May 12, the RBI stated that some banks and financial institutions were yet to facilitate an absolute transition away from the London Interbank Offered Rate (LIBOR) benchmark. They had not inserted fallback clauses into all their financial contracts that reference U.S.$ LIBOR or the corresponding domestic Mumbai Interbank Forward Outright Rate (MIFOR). Both LIBOR and MIFOR would cease to be a representative benchmark from June 30 this year.

LIBOR is a global benchmark interest rate that combines individual rates at which banks opine they may borrow from each other (for a particular period of time) at the London interbank market. It is used as a benchmark to settle trades in futures, options, swaps and other derivative financial instruments in over-the-counter markets (participants engaging directly without using an exchange) and on exchanges globally. Further, consumer lending products including mortgages, credit cards and student loans, among others, too use it as a benchmark rate.

Every business day before 11 a.m. (London time), banks on the LIBOR panel make their submissions to news and financial data company, Thomson Reuters. The panel consists of commercial bankers such as J.P. Morgan Chase (London branch), Lloyds Bank, Bank of America (London branch), Royal Bank of Canada and UBS AG, among others. Following the submission, the contributed rates are ranked. Extreme quartiles, on the top and bottom, are excluded and the middle quartiles are averaged to derive the LIBOR. The idea is to be as close to the median as possible.

The central flaw in the mechanism was that it relied heavily on banks to be honest with their reporting disregarding their commercial interests.

It must be noted that the rates were made public. Therefore, it would not be particularly useful to impress upon potential and current customers the various disadvantages in obtaining funds. The phenomenon was particularly on display during the 2008 financial crisis when submissions were artificially lowered (amid the crisis). In 2012, Barclays admitted to the misconduct and agreed to pay $160 million in penalties to the U.S. Dept of Justice. The Wall Street Journal too had studied in May 2008 that several panelists were paying “significantly lower borrowing costs” than what other market measures were suggesting. Another observed phenomenon was the tendency to alter (higher or lower) the submission as per the entities’ trading units’ derivative positions to acquire more profits.

Yes, in 2017, the U.S. Federal Reserve announced the Secured Overnight Financing Rate (SOFR) as a preferred alternative. Accordingly, in India, new transactions were to be undertaken using the SOFR and the Modified Mumbai Interbank Forward Outright Rate (MMIFOR), replacing MIFOR.

As stated by the International Finance Corporation (IFC), it is based on observable repo rates, or the cost of borrowing cash overnight, which is collateralised by U.S. Treasury securities. Thus, making it a prevailing transaction-based rate and drifting away from the requirement of an expertise judgement as in LIBOR. This would make it potentially less prone to market manipulation.

The RBI had stated in its November 2020 bulletin that, in India, exposures to LIBOR are from loan contracts linked to it and Foreign Currency Non-Resident Accounts (FCNR-B) deposits with floating rates of interest and derivatives. In August the same year, the banking regulator had asked banks to assess their LIBOR exposures and prepare for the adoption of alternative references rates. Contracts entered after (or before, if possible) December 31, 2021, were not to use the LIBOR as reference rate. More importantly, contracts entered before the date were to have fallback clauses, that is, an agreement for revised considerations when the reference rate is no more published — important for transparency and consistency.

Worried that poor, less-educated women, particularly in rural areas, continue to be at higher risk of undergoing unnecessary and often unjustified hysterectomies, the Health Ministry has written to all stakeholders to work towards plugging “such hysterectomies performed by certain medical institutions”.

The action comes following the Supreme Court’s direction last month, where the States and Union Territories were instructed to implement health guidelines formulated by the Centre to monitor “unnecessary” hysterectomies within three months. Hysterectomy is a surgical procedure to remove the uterus.

A public interest litigation (PIL) petition filed before the Supreme Court had said that in Bihar, Chhattisgarh, and Rajasthan, “unnecessary hysterectomies” were carried out under the Rashtriya Swasthya Bima Yojana as well as other government schemes related to healthcare.

The petition was filed in 2013 by Narendra Gupta, a doctor and public health expert, who based the petition on his fieldwork.

It also highlighted the involvement of private hospitals in performing such hysterectomies.

Dr. Gupta said that women who should not have been subjected to hysterectomies but should have been provided alternative treatment, were told to undergo the procedure, seriously endangering their health in the process.

The petitioner also submitted that most women who were subjected to hysterectomies of this kind belonged to the Scheduled Castes, Scheduled Tribes, or Other Backward Communities. It was also noted with concern that several healthcare institutions were found to be misusing the procedure only to claim expenses under various health insurance schemes offered by the government.

The recent letter from Health Secretary Rajesh Bhushan said, “States are requested to share the hysterectomy status and data before and after the implementation of these guidelines.”

“They are also advised to undertake compulsory audits for all hysterectomies, as is already being done for maternal mortality in all healthcare institutions — both public and private,” it added.

In 2022, the Health Ministry had issued ‘Guidelines to prevent unnecessary hysterectomies’, and asked States to comply with them.

The recent judgment also noted that the guidelines indicate that while in developed countries hysterectomies are typically conducted among premenopausal women above the age of 45, in India, community-based studies have consistently found rising hysterectomy rates among young women, ranging from 28 to 36 years of age.

“The right to health is an intrinsic element of the right to life under Article 21 of the Constitution. Life, to be enjoyed in all its diverse elements, must be based on robust conditions of health. There has been a serious violation of the fundamental rights of the women who underwent unnecessary hysterectomies,’’ said the judgment.

It is near-certain that 2023-2027 will be the warmest five-year period ever recorded, the United Nations warned on Wednesday as greenhouse gases and El Nino combine to send temperatures soaring.

There is a two-thirds chance that at least one of the next five years will see global temperatures exceed the more ambitious target set out in the Paris accords on limiting climate change, the UN’s World Meteorological Organization (WMO) said.

The hottest eight years ever recorded were all between 2015 and 2022, with 2016 the warmest — but temperatures are forecast to increase further as climate change accelerates.

“There is a 98% likelihood that at least one of the next five years, and the five-year period as a whole, will be the warmest on record,” the WMO said.

The 2015 Paris Agreement saw countries agree to cap global warming at “well below” two degrees Celsius above average levels measured between 1850 and 1900 — and 1.5 degrees Celsius if possible.

The global mean temperature in 2022 was 1.15 degrees Celsius above the 1850-1900 average.

The WMO said there was a 66% chance that annual global surface temperatures will exceed 1.5 degrees Celsius above pre-industrial levels for at least one of the years 2023-2027, with a range of 1.1 degrees Celsius to 1.8 degrees Celsius forecasted for each of those five years.

“WMO is sounding the alarm that we will breach the 1.5C level on a temporary basis with increasing frequency,” said the agency’s chief Petteri Taalas.

“A warming El Nino is expected to develop in the coming months and this will combine with human-induced climate change to push global temperatures into uncharted territory.

“This will have far-reaching repercussions for health, food security, water management and the environment. We need to be prepared.”

El Nino is the large-scale warming of surface temperatures in the central and eastern equatorial Pacific Ocean. The weather phenomenon normally occurs every two to seven years.

Typically, El Nino increases global temperatures in the year after it develops — which in this cycle would be 2024.

Heat gets trapped in the atmosphere by so-called greenhouse gases, which are at a record high.

The major greenhouses gases are carbon dioxide, plus methane and nitrous oxide.

“The return to normal level might take even thousands of years because we already have such a high concentration of carbon dioxide, and we have lost the melting of glaciers and sea level game,” said Mr. Taalas.

“There’s no return to the climate which persisted during the last century.”