Legislators acting in response to moral outrage seen on television and during street protests and being apparently influenced by the importunate gaze of victims of crime from the gallery, does not augur well for sound law-making. It may not be right to characterise the quick passage of the Juvenile Justice (Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already been passed in the Lok Sabha in May 2015. The draft too had been slightly modified before that, based on a February 2015 report of a standing committee of Parliament. Yet, it is difficult to overcome the impression that some members may have been gripped by a bout of moral panic after the release of the youngest convict in the Delhi gang rape of December 2012. The seeming sense of urgency was undoubtedly influenced by a section of the media demanding ‘justice’ after the convict was released from a Special Home on completing his three-year term there. An impression is sought to be created that the country’s collective conscience demanded that a tough law be enacted to ensure that juvenile convicts committing heinous crimes do not get away with light sentences. An edifying aspect of this legislative episode is that there are enough voices around that understand that restorative justice is best ensured for this underclass by addressing the fundamental problems that create juvenile offenders in society in the first place, by ensuring universal access to education and social care for all children.
The Bill, which contains progressive aspects such as streamlining adoption procedures and extending the law’s protection to orphans and abandoned children, still suffers from the problems highlighted by the parliamentary panel. The government, unfortunately, did not accept the view that children in a particular age group being subjected to the adult criminal justice system will violate their right to equality under Article 14 and the objective of protecting children in Article 15(3) of the Constitution. It, however, dropped a clause that provided for treating those who had committed crimes before reaching the age of 18 but were apprehended after they turned 21, agreeing that it was unconstitutional. It extended the period of preliminary assessment (the original draft called it ‘inquiry’) by the Juvenile Justice Board to determine whether a juvenile offender should be sent for rehabilitation or tried as an adult, from one month to three months. The board’s assessment will still be subject to judicial review and may set off litigation over whether one 16-year-old was let off lightly or another was wrongly sent to an adult court. Such decisions may also be influenced by the prevailing public mood. It would have been wiser to have let the law stand in conformity with the UN Convention on the Rights of the Child, which advocates equal treatment of all children under the age of 18. The difference between sober assessment and mercurial action cannot be more starkly emphasised.
In a speech to Harvard Law School in the 1890s, Justice Oliver Wendell Holmes, Jr. called the law “the government of the living by the dead” and said “to a very considerable extent, no doubt it is inevitable that the living should be so governed”. The December 16, 2012 rape and murder in Delhi of Nirbhaya, and the consequent legislative changes spawned by the incident, illustrate just this proposition.
First, the Criminal Law (Amendment) Act, 2013, redefined the offence of rape as well as the standards of proof required to sustain an allegation. Now the Rajya Sabha has just passed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2015, which allows for children between the ages of 16 and 18 to be tried in adult courts for heinous crimes.
Private grief, public empathy
Driving the agenda of the dead are Asha Devi and Badri Singh Pandey, parents of Nirbhaya, who are now the face of India’s response to the tragedy. For the past three years, their public mourning for their brutalised, dead daughter has been a very intense affair. They are present at every court hearing of consequence, they have attended innumerable condolence meetings, commemorations and vigils. They have not allowed their daughter’s fighting spirit to die. We feel their sorrow, and share and understand their anger. To them, the release of the juvenile offender, in this case after only three years in a correctional facility, appears to be inordinately early.
But the righteous anger of this couple has become Schadenfreude and worse for a whole mass of citizenry. Anger is being exploited by TRP-driven purveyors of outrage porn, to strike at all possible newsworthy targets. The juvenile delinquent has been demonised to the point where any revelation of his current identity is likely to result in violence against him. Parliament is being excoriated in the mistaken belief that a legislative fix could have ensured continued incarceration of the juvenile. It is being suggested that legislative inaction over the passage of the Bill through the Rajya Sabha has been responsible for the juvenile walking free. Even when informed that the Constitution of India prohibits retroactive criminal punishments, the proponents of outrage for outrage’s sake point to the grave dangers of unpunished juvenile crime. They suggest that the new legislation, which enables trying juveniles as adults, is an effective deterrent which will ring-fence middle-class India from being attacked by juvenile criminals hell-bent on rape. The absence of a deterrent law, they suggest, is akin to inviting undeterred juvenile crime.
Worse than the disease
But has juvenile delinquency reached epidemic proportions requiring legislation? Or is it a single juvenile, involved in a grossly revolting case, whose facts are being used to create a fear which did not previously exist? While television anchors have harangued us about how juvenile crime has risen by 47 per cent, they have failed to inform us that actual juvenile crime is still less than 2 per cent of reported crime figures.
Second, most of it is non-violent crime and often the result of vagrancy. Most importantly, most children in trouble with the law come from extremely poor backgrounds and are often runaways from hunger and abuse at home. Does this most vulnerable section of our society require legislation to keep it from being a menace to the rest of us? To my mind, legislation may be a remedy worse than the disease.
Harsh legislation is a cheap fix for politicians to douse public anger at events. But harsh laws do not diminish the problem, nor do they protect future victims. TADA [Terrorist and Disruptive Activities (Prevention) Act] and POTA [Prevention of Terrorism Act] did not end up reducing terrorism, but they ended up empowering lazy policing. The Act to prevent atrocities on Scheduled Castes often ends up as a vendetta tool in government employment. Section 498A of the Indian Penal Code, which was introduced to combat dowry-related crimes, has been so abused that the Supreme Court had to step in to regulate its blatant misuse; the section has been responsible for many a salvageable marriage being wrecked. Criminalising cheque bouncing has resulted in our criminal courts being flooded with cases from financial institutional lenders and magistrates ending up as recovery agents. Yet, we as a society, keep clamouring for harsher laws, which politicians enact to escape being targets of outrage. We fail to heed Irish statesman, author and political theorist Edmund Burke’s dictum that “bad laws are the worst sort of tyranny”.
As a country, our lawyers, faced with delay in the civil courts, resort to the threats of the criminal justice system, where pretrial denial of individual liberty is often the norm. The maximum proportion of female offenders in any Indian jail is women arrested under the dowry laws. Their accusers are women as well but often put up to such accusations by male relatives and lawyers. Every crime which entails prison time ends up imprisoning a family as well. Criminal laws made to benefit a particular section end up being misused against them. It is in this background that we must consider the question of whether as a nation, we are better off treating our children in conflict with the law as adult offenders to be punished or as juvenile delinquents to be reformed.
The new Act has yielded to outraged opinion by making possible the trial of a young offender as an adult if he or she is accused of a heinous crime. Heinous crime is defined as crime that carries a sentence of imprisonment for seven years or more under any law. A variety of acts, including non-violent crimes such as forgery, or even crimes of incitement such as sedition, attract a prison term of seven years or more. Under the new law, a stone-pelting teenager in Kashmir or a teenage purveyor of counterfeit currency from Kanyakumari is as likely to be treated as an adult criminal.
Pitfalls of extreme justice
We, as a nation, also have a warped attitude towards sex and sexuality, with notions of family pride and honour bound in. A lot of cases of young love and elopement do end up in police stations as charges of rape and kidnapping. An angry father of a runaway girl often has no means of restoring societal honour except by alleging that his daughter or ward was unwillingly taken away. Similarly where “love jihad”-type allegations are made, the filing of rape and kidnapping charges is usually the norm. When return is not an option for runaway teenagers, the other option is often voluntary death. When, previously, erring teenagers could be admonished, today we risk imprisoning them unless both sets of parents act maturely. We therefore need to very carefully evaluate how far we wish to traverse down the path of criminalising our youth.
From the policeman who makes the arrest, to the Juvenile Justice Board that takes the call on whether to allow prosecution as an adult, large amounts of discretion will necessarily operate. Those who can afford it can and will challenge any decision to prosecute in higher courts. The result is more likely to be greater uncertainty, and lesser justice, as criminal trials get stalled by appeals to superior courts.
“Extreme justice is often injustice,” wrote dramatist Jean Racine, and an India that disempowers the loneliest, the lost and the last will be a much harsher place. Whether safety lies in the path of harshness, or in effective implementation of existing laws, is a call for the republic to take. Justice Holmes, to return to his Harvard lecture, advised: “The past gives us our vocabulary and fixes the limits of our imagination; we cannot get away from it. There is, too, a peculiar logical pleasure in making manifest the continuity between what we are doing and what has been done before. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity.”
Has Nirbhaya’s death necessitated harsh laws to deal with India’s young people or have we elders failed our succeeding generations of youngsters by exposing them to adult penalties?
(Sanjay Hegde is a senior advocate of the Supreme Court.)
Supreme Court Constitutes a Special Bench titled as “Social Justice Bench” for hearing matters related to Women and Children
The Constitution of India in its Preamble has assured the people a three dimensional justice including social justice. Under the domain of ‘social justice’ , several cases highlighting social issues are included. To mention summarily, about the release of smplus food grains lying in stocks for the use of people living in the drought affected areas; to frame a fresh scheme for public distribution of food grains; to take steps to prevent untimely death of the women and children for want of nutritious food; providing hygienic mid-day meal besides issues relating to children; to provide night shelter to destitute and homeless; to provide medical facilities to all the citizen irrespective of their economic conditions; to provide hygienic drinking water; to provide safety and secured living conditions for the fair gender who are forced into prostitution , etc., these are som of the areas where the constitutional mechanism has to play a proactive role in order to meet the goals of the Constitution.
In Supreme Court several cases relating to the domain of ‘social justice’ are pending for several years. Hon’ble the Chief Justice of India is of the view that these cases shall be given a specialized approach for their early disposal so that the masses will realize the fruits of the rights provided to them by the constitutional text. In this perspective, His Lordship has ordered constitution of a Special Bench titled as “Social Justice Bench” to deal specially with the matters relating to society and its members , to secure social justice, one of the ideals of the Indian Constitution. His Lordship further directed that this Bench would function from 1th December ; 2014 and in order to ensure that these matters are monitored on regular basis, will continue to sit on every working Friday at 2.00 p.m. This Bench will be comprising of Hon’ble Mr. Justice Madan B. Lokur and Hon ‘ble Mr. Justice Uday U. Lalit. Not only pending cases but fresh matters will also be dealt with by this Special Bench.
V RAMASUBRAMANIAM IN THE HINDU
The Madras High Court was one of the few courts to which even litigants added excitement.
While celebrating an important milestone in the history of a court, we normally tend to remember only the lawyers who stood and argued, and the Judges who sat and decided cases. But, the contribution of litigants was in no way less significant. Persons of eminence, whose names have gone into the history of India, have appeared as litigants in the Madras High Court and fought many a battle. The names of two of them merit mentioning.
Annie Besant was involved in two famous cases decided by the Madras High Court. One related to the guardianship and custody of two minors and another related to the freedom of the press.
Narayaniah, a retired tehsildar and a member of the Theosophical Society, entrusted the custody of two of his sons, Krishnamurthi and Nityananda, to Annie Besant in March 1910. Annie Besant claimed that the elder son, Krishnamurthi, was likely to develop spiritual powers and become “a vehicle” for the manifestation of supernatural phenomena. After she took the boys to England, Narayaniah filed a suit in the District Court, Chengalpet, seeking custody of the minor sons.
The suit was withdrawn from the District Court and transferred to the High Court and tried by Justice Bakewell. Interestingly, both parties admitted that they were financed in the litigation by some third parties, which impelled the court to observe that some question other than the welfare of the children had influenced the litigation.
Narayaniah made allegations of immoral and improper conduct against Leadbeater, a prominent member of the Theosophical Society, with reference to the children. Annie Besant denied the allegations and claimed that the suit was politically motivated. She also made allegations against The Hindu, contending that a malignant campaign against her and the Society was carried on in the newspaper, at the instigation of Catherine Tingley and Nanjunda Rao. The Hindu filed an application to strike out certain portions of the written statement, which contained allegations against it.
By a judgment on April 15, 1913, Justice Bakewell declared the boys wards of the court and decreed the suit directing Annie Besant to hand over custody to the father. Deviating from the normal rule that litigation costs would always follow the event, Justice Bakewell directed the plaintiff, the successful party, to bear the costs, on the ground that several Commissions had to be appointed and witnesses examined at several places. The allegations of immoral conduct made against Leadbeater were rejected as unbelievable.
Annie Besant appealed, and Narayaniah filed cross-objections on the question of costs. A Division Bench dismissed the appeal and allowed Narayaniah’s cross-objections. However, the Privy Council reversed the decision, after the boys expressed a desire to continue their education in England. After their return to India, the Theosophical Society anointed the elder boy as a World Teacher in the “Order of the Star in the East.” In 1929, he denounced the claim that he was a messiah and dissolved the Order. Eventually, he became an independent thinker and celebrated philosopher. He was J. Krishnamurthi.
While Sir C.P. Ramaswamy Aiyar appeared along with Subbaraya Iyer for Narayaniah, Annie Besant appeared in person and argued. Though C.P. Ramaswamy Aiyar appeared against Annie Besant, he maintained a very high degree of dignity and professional etiquette, which impelled her to laud him as a lawyer of unfailing fairness. At one stage of the battle, Narayanaiah wanted to initiate contempt proceedings against Annie Besant for her failure to comply with a court order. But C.P. Ramaswamy Aiyar prevailed upon his client not to do so. Touched by his gesture, Annie Besant sought, after the case was over, C.P. Ramaswamy Aiyar’s cooperation, in her educational and political work. A great friendship blossomed between the two, which led to C.P. RamaswamyAiyar becoming the Vice-President of the Home Rule League.
An interesting corollary of the custody dispute was the contempt of court proceedings initiated by Annie Besant against The Hindu for the publication of two items. The first was the entire plaint. Annie Besant charged that the items published tended to have a bearing on the questions at issue in the suit. After finding that the written statement of Annie Besant was also published in the newspaper, Justice Bakewell dismissed the contempt petition, holding that there was nothing to suggest any interference in the administration of justice. The Judge also recorded a finding that the contempt application was not made purely with a desire that the fountain of justice should remain undefiled, but as part of the warfare between the parties.
While in the custody dispute Annie Besant took exception to the role played by the press, she herself had to fight state oppression of the media in the next case.
In July 1914, Annie Besant purchased a printing press from where a newspaper, Madras Standard, was being published. She changed its name to New India and started publishing it from August 1914. As required under the Press and Registration of Books Act, 1867, Annie Besant filed a declaration in December 1914 before the Chief Presidency Magistrate. He accepted it without demanding any security. But, after more than a year, the Chief Presidency Magistrate suo motu passed an order, dated May 22, 1916, demanding that she deposit Rs.2,000 as security. The order was complied with.
A series of articles came to be published in New India in June 1916. Some of these criticised the bureaucracy, some related to the unlawful reservation of compartments in certain trains for Europeans and Eurasians. One was a reproduction of an article published in The Herald, London, under the headline, “The price of liberty.” Another was by Bipin Chandra Pal about the assassination of Superintendent of Police Basanth Kumar Chatterjee of Calcutta. One criticised the demand made on Bal Gangadhar Tilak for a security bond of Rs.40,000 on charges of sedition, when he was about to go abroad to prosecute his suit against Sir Valentine Chirole.
Taking exception to these articles, Governor-in-Council of Bombay issued an order on June 29, 1916, under the Defence of India Rules, 1915, prohibiting Annie Besant from entering, residing or remaining in the Province of Bombay. The order was published by Annie Besant in New India on July 10, 1916, under the headline, “Ave Caesar,” followed by another set of articles. The Governor-in-Council issued a declaration under Section 4 of the Press Act, forfeiting the amount of Rs.2,000 deposited by Annie Besant in respect of the New India Printing Works, Madras, and ordering the forfeiture of all copies of New India.
Annie Besant moved two motions, one against the order of the Chief Presidency Magistrate, dated May 22, 1916, demanding security, and another challenging the government order directing forfeiture of the security deposit and copies of the newspaper. In the former, C.P. Ramaswamy Aiyar appeared for Annie Besant. In the latter, she appeared in person and made a passionate plea for the freedom of the press before a Special Bench of the Madras High Court. But the Bench dismissed the petitions; the Privy Council upheld the decision.
Another illustrious litigant to appear was Nani Palkhivala. Advocate A.C. Sampath Iyengar of Mylapore, filed a suit in the Original Side against Sir Jamshedji B. Kanga, N.A. Palkhivala, and N.M. Tripathi Ltd. His claim was that The Law and Practice of Income Tax authored by Sir Jamshedji B. Kanga and Palkhivala infringed his copyrights in the book authored by him under the title The Indian Income Tax Act.
The Attorney General for India appeared for the defendants along with H.M. Seervai. Palkhiwala examined himself as a witness and subjected himself to extensive cross-examination. At that time Palkhivala had not become a name to reckon with. Yet, Justice Panchapakesa Ayyar understood his potential and remarked about him in his judgment: “he… struck me as a competent and alert lawyer, who was thoroughly conversant with the Income Tax Act and Law, and was very well informed with every part of his book, and could give a cogent account of any part of it, regarding the scheme, arrangement, analysis, conclusion, criticism, etc. He struck me also as giving his evidence in a straight-forward fashion.”
Ultimately, the Judge dismissed the suit after recording a finding that sometimes authors, unlike businessmen, act on impulses. Exhibiting a high degree of grace at the threshold of a great victory, Palkhivala and Sir Jamshedji Kanga agreed not to press for costs. The decision in that case became one of the landmark decisions on the Copyright Act, and what Palkhivala, the second defendant in the suit, became in the next two decades, is history.
The Madras High Court is perhaps one of the very few courts, to which even the litigants added lustre in those days.
(Justice V. Ramasubramanian is a Judge of the Madras High Court.)
Structure of the Programme
The programme is a two-year engagement with an annual evaluation as a milestone for continuation. During the two years, the selected candidate will be taken through an intensive capacity building process to use law for fighting exclusion, discrimination, enabling entitlements and to establish herself / himself as a leader in the field of law. There will be a total of 30 days of contact sessions in a year in which the selected candidate will be expected to remain present. These contact sessions will be conducted once every two months for 6-7 days pre-decided in the annual calendar. In between the contact sessions, Fellows will work with organizations working on rights based issues, explore possibilities of legal interventions and also carry out
About Lawyers for Change (LfC)
World history is replete with illustrations of great leaders who have been lawyers. They are the people who designed the structure of nations, led movements to eradicate ills of the society and inspired thousands of others to follow their footsteps. Lawyers for Change (LfC) is a fellowship programme for leadership development designed exclusively for young lawyers – for those who aspire to bring about change in the society. Over two years of the programme, LfC will systematically work with the lawyers and help them build the identity and skills required for Social Justice Lawyering. The academy has distinguished faculty members from amongst well known human rights educators, retired members of the judiciary, senior lawyers and practitioners in the field. Activities of the academy will include rigorous training sessions which will be conducted once in every two months. In between the two months, Fellows will explore opportunities for legal interventions while working with rights based organizations in different parts of the Country and be connected with the academy electronically.
Applications for the Fellowship
We are looking for:
Students of law in their final year of law school expected to graduate before June 2012.
- Practicing lawyers who are associated with organizations working on rights based issues.
- Lawyers who want to start a practice on social justice issues.
PLEASE NOTE: The programme is open ONLY to candidates below 32 years of age. A good knowledge of written and spoken English and working knowledge of computers is a MUST for every candidate. The programme is open only to citizens of India.
How to apply?
An email may be sent to email@example.com on or before 29th February, 2012 with the CV of the applicant attached. The „Subject‟ field of the email must clearly mention “Application for Programme”. Candidates who had applied for the previous batch may also apply.
Date and location of the interview will be notified to shortlisted candidates before 7th March, 2012.
Selected candidates will be awarded a fellowship of upto Rs. 16,000 per month. Candidates will also be entitled for a monthly allowance of Rs. 2500 for books, travel and internet connection. Travel to and from Ahmedabad for attending training sessions will be reimbursed according to policy.
Mobile: (+91) 99099 63150
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
New Delhi: At a time when four different benches of the Supreme Court are trying to rescue the justice delivery system from the web of 3 crore pendency, Chief Justice of India S H Kapadia has written to the government proposing an innovative method to achieve the goal. Justice Kapadia, in a letter to the law minister last month, proposed setting up of National Court Management System Committee (NCMSC) to develop and implement the proposals and an Advisory Committee consisting of two SC judges and CJs and judges of HCs, to be nominated by him, to oversee implementation of the proposals, which include:
National Framework of Court Excellence to set standards of performance for courts and address the issues of quality, responsiveness and timelines
- A case management system to ensure user friendliness of the judicial process to stakeholders
- National System of Judicial Statistics for common national platform for recording and maintaining judicial statistics across the country
- A court development plan system to provide a framework for 5-year plan for future development of Indian judiciary
- A human resource development strategy to set up standards for selection and training of judges in the subordinate courts
- “When an Institution No Longer matters, we no longer matter.” (indialawyers.wordpress.com)
- In action-packed 2011, Supreme Court cleared over 79,000 cases (indialawyers.wordpress.com)
- 2011- Year of criticism, from the bench and against it (indialawyers.wordpress.com)
The Prime Minister, Dr. Manmohan Singh, has greeted the nation on the eve of the New Year. Following is the text of the Prime Minister’s message to the Nation on the occasion:
“My Fellow Citizens,
I wish you all a peaceful, productive and secure New Year.
New Year’s Day is a day of resolutions. Each of us makes our own resolutions – to live a healthier life, to live a more honest life, to live a better life and to live a happier life. I sincerely hope in the New Year we can all work together with a new resolve: to make our homes and neighbourhood, our village or town, and our nation a better place to live in.
If each of us works towards that end, we can be sure that we are also making the world a better and a safer place.
The year that has just ended was a very difficult year for the world. Economic crises, socio economic tensions, political upheavals in many developing countries and political deadlock in some of the developed countries, all cast their shadow on 2011. A ‘revolution of rising expectations’, fostered by the extraordinary reach of the electronic media and the connectivity provided by new social networking platforms, has kept Governments around the world on their toes.
We in India have had our share of problems. The Indian economy slowed down and inflation edged up. Concern about corruption moved to the centre stage.We must not be too downcast at these events. All countries and economies go through cycles. We must remember that downturns are followed by upturns. Indeed, they are often a test of our ability to respond to new challenges.
The task before us is clear. We must address the new concerns that have arisen while remaining steadfast in our commitment to put the nation on a development path which ensures rapid, inclusive and sustainable growth. I want to assure you all on this New Year’s day that I personally will work to provide an honest and more efficient government, a more productive, competitive and robust economy and a more equitable and just social and political order.
I believe we have made more progress than is commonly realised. I am personally delighted that Government was able to introduce the Food Security Bill and the Lok Pal and Lok Ayukta Bill in Parliament. The Lok Pal and Lok Ayukta Bill was passed by the Lok Sabha. It is unfortunate that the Bill could not be passed in the Rajya Sabha. However, our Government is committed to the enactment of an effective Lok Pal Act. Taken together with the Right to Information Act, the National Rural Employment Guarantee Act and the Right to Education Act, these are legislative legacies that generations of Indians will come to value, appreciate and benefit from.
On this New Year’s Day I do not wish to dwell on the year gone by. Instead, I would like to focus instead on the challenges of the future, so that we can all work together to over come them.
Our biggest challenge today remains that of banishing poverty, ignorance and disease. Simultaneously, we must work to build an India that holds the promise of prosperity to the many millions of our people who are just beginning to emerge out of poverty. We must remain focused on this fundamental task in the Twelfth Plan period which begins in 2012-13.
As I look ahead I see Five Key Challenges facing the nation. To meet these challenges we need the concerted efforts of the central government, the state governments, political parties and indeed all concerned citizens.
First, there is the urgent challenge of eradicating poverty, hunger and illiteracy and providing gainful employment to all. I call this the challenge of Livelihood Security.
There are many steps we need to take to address this challenge and of these, the most important is to empower every citizen with the light of education. I say this with the deepest conviction because I know what education did for me. I was born into a family of modest means, in a village without a doctor or a teacher, no hospital, no school, no electricity. I had to walk miles every day to go to school, but I persevered and was fortunate to be able to secure a high school education, and then go on to higher education. It is this access to education that transformed my life and gave me new opportunities which others with my background could not dream of.
I firmly believe that educating our children, providing them with employable skills, while also ensuring their good health, must be our first and primary task. There is no better investment we can make in the future – the future of our children, of our families, of our communities, and of our nation.
Along with education and affordable health care, we must also generate a growth process that can provide gainful employment to all. This is the only way that we can wipe out poverty in a sustainable fashion.
However, since many elements of this strategy will take time to bear full fruit, we must in the meantime pay urgent attention to the needs of those who need immediate support. It is for this reason that the government has taken steps to provide minimum employment and access to food to those who need it most.
I believe that the initiatives we have taken to invest in education and health, provide an employment guarantee and also provide food security, constitute a robust response to the challenge of providing greater Livelihood Security for our people.
My Fellow Citizens,
The second challenge that demands our attention is Economic Security. Economic security comes from having an economy that can produce the material output required to achieve desired consumption levels for the people and one that can generate the productive jobs needed to satisfy the aspirations of the workforce. To reach this level we will have to ensure rapid growth accompanied by adequate job creation. Rapid growth is also necessary to generate the revenues we need to finance our livelihood security programmes.
The process of economic reforms was initiated in the mid eighties and accelerated the 1990s precisely to accelerate our growth potential. Because of our democratic system, the reforms were introduced gradually to begin with, in order to garner broad based support. That we succeeded in this objective is evident from the fact that successive governments of different political complexions at the centre, and many governments belonging to different political parties in the states, have more or less pushed in the same direction. However, this gradualist pace also meant that the full effects of the reforms took time to have effect.
Yet, the fruits of this effort have been amply evident in the past several years. The average growth rate of the economy was around 4 % per year before the 1980s. It increased to an average of about 8 % since 2004.
Although we have every reason to be satisfied with this performance, it would be wrong to conclude that India is now unshakeably set on a process of rapid growth. Our growth potential is indeed established. But there are many challenges we have to face if we want to maintain this growth in the years ahead, as indeed we must.
To achieve sustained rapid growth we need to do more than halt the current slowdown though that is certainly the first step. We need to usher in a second agricultural revolution to ensure sufficient growth in rural incomes. We also need to usher in the many reforms needed to trigger rapid industrialisation and to build the infrastructure which such industrialisation needs.
Rapid growth will also bring structural change, notably in the rate of urbanisation. Our urban population is expected to grow from 380 million at present to 600 million by 2030. We must be able to provide productive jobs in the non agricultural sector for this expanding urban population and we must also be able to expand our urban infrastructure to deal with the expected expansion of the urban population.
In 1991 when we liberated our economy from the shackles of the Licence-Permit Raj, our main objective was to liberate the creativity of every one of our citizens from the deadweight of bureaucracy and corruption. Today’s youth, born in the 1980s and later, would have no memory of the kind of corruption that the regime of controls and permits had created. To get a railway ticket or a telephone connection you had to bribe someone. To buy a scooter you had to bribe someone to jump the queue!
However, even as the creative energies of our people have been unleashed and old forms of corruption have vanished, new forms of corruption have emerged which need to be tackled. Elimination of corruption is critical to support genuine entrepreneurship. It is also the demand of the ordinary citizen who encounters corruption all too often in everyday transactions with those in authority.
This is a serious problem that calls for a multi-dimensional response. New institutions such as the Lokpal and the Lokayuktas are an important part of the solution and we have initiated the process for establishing them. But this is only one part of the solution. We also need reforms in systems of government which would increase transparency and minimise discretion so that the scope of misgovernance is reduced. We have taken several steps in this regard. We have introduced in Parliament a Bill on Citizen’s Charters which will empower citizens to demand services at appropriate standards from government departments. We have introduced a Bill on Judicial Accountability.
These initiatives will take time to have their full effect and we must therefore be patient. But I do believe they are transformational initiatives, which will be recognised as such a few years down the line.
A critical element in ensuring economic security and prosperity is the need for fiscal stability. India has paid a heavy price in the past for fiscal profligacy. Many of us can recall the dark days of 1990-91 when we had to go around the world begging for aid. Fortunately we were able to overcome the problem fairly quickly and for most of the past two decades we have been able to hold our head high, because we have managed our fiscal resources well. We must ensure that the country does not go down that road once again.
I am concerned about fiscal stability in future because our fiscal deficit has worsened in the past three years. This is mainly because we took a conscious decision to allow a larger fiscal deficit in 2009-10 in order to counter the global slowdown. That was the right policy at the time. But like other countries that resorted to this strategy, we have run out of fiscal space and must once again begin the process of fiscal consolidation. This is important to ensure that our growth process is not jeopardised and, equally important, our national sovereignty and self respect are not endangered.
The most important step for restoring fiscal stability in the medium term is the Goods and Services Tax. This would modernise our indirect tax system, increase economic efficiency and also increase total revenues. Another important step is the phased reduction in subsidies. Some subsidies, such as food subsidies are justifiable on social grounds and are expected to expand once the Food Security bill becomes operational. But there are other subsidies that are not and these must be contained. Some of the reforms needed for economic security attract controversy and cause nervousness. This is understandable, but we should learn from our past experience with reforms. Things that we take for granted today caused similar controversy twenty years ago. We should remember that change is necessary for development and while we must anticipate change, and even protect the most vulnerable from ill effects, we should not lock ourselves into a blind refusal to contemplate change. If we have confidence in ourselves, we will be able to meet any challenge.
The third challenge we face, is the challenge of Energy Security. Energy is an essential for development because higher levels of production inevitably involve larger energy use. Our percapita energy levels are so low that we need, and must plan for, a substantial growth in energy availability.
The energy security challenge is particularly great for India because we are trying to develop in an environment in which our domestic energy resources are limited and the world is transiting to a period when energy is likely to be scarce and energy prices are expected to be high.
As a first step, we must ensure effective utilisation of all available domestic energy resources. Unfortunately, our attempt to tap both old and new sources of energy is being threatened by a range of problems. Be it coal or hydro power, oil or nuclear power we find new challenges that have to be overcome to develop these resources to the fullest extent possible. We must re-examine all domestic constraints on such development to see how they can be overcome.
The domestic agenda for energy security is clear. We need new investment in established sources of energy such as coal, oil, gas, hydro electricity and nuclear power. We also need investment in new sources of energy, like solar and wind. Parallel with expanding domestic supplies, we need to promote energy efficiency to contain the growth of energy associated with rapid growth.
Both goals of expanding new investment and achieving energy efficiency require a more rational pricing policy, aligning India’s energy prices with global prices. This cannot be done immediately, but we need to outline a phased programme for such adjustment and then work to develop support for making the transition. I realise that this will not be easy, but unless we can achieve this transition we will not be able to promote energy efficiency as much as we should, and we will certainly not be able to attract enough investment to expand domestic energy supplies.
Energy security also has a global dimension. Even with the best domestic effort our dependence on imported energy is expected to increase. We need assured access to imported energy supplies and also access to new energy related technologies. This means we need sensible policies that can promote economic partnership with countries that have energy resources and technologies. We also need a pro active foreign policy, protecting our access to such resources and to foreign technology.
A fourth important challenge we face in the years ahead is the challenge of ecological security. Economic growth is essential for the well being of our people, but we cannot allow growth to be pursued in a manner which damages our environment. We owe it to future generations to ensure that the environment they inherit from us is at least as capable of providing economic security for them as the one we inherited from our parents
We cannot allow the waters of our rivers to be polluted by untreated effluent and sewage. Yet this is happening today because of weak regulation and lack of enforcement over industry and the cities. Similarly, we cannot allow air pollution to proceed unabated promoting respiratory diseases which impose a heavy burden on large numbers of our people especially the poor.
Ecological security also involves protection of our forests which play a critical role not only in absorbing carbon emissions but also in providing us with water security. Forests help reduce water run off and siltation and increase water retention in the ground, recharging our underground acquifers. Some forest land often has to be surrendered to allow the exploitation of natural resources including energy and mineral resources and hydro electric potential. This must be done in a manner which minimises the extent of surrender and also provides sufficient compensatory afforestation to ensure ecological security to the nation.
All these problems can be solved and have been solved in other countries. It requires stronger and more transparent regulation and it also involves extra costs. These costs must be borne by those who pollute and this principle must be well understood and strictly enforced.
Looking beyond the immediate ecological issues, there is the larger challenge of climate change. As responsible citizens of the world we must pursue a pattern of development which reduces greenhouse gas emissions per unit of our GDP by about 20-25% by 2020 as our contribution to global ecological security. This objective is closely linked to the pursuit of rational energy policies mentioned earlier.
Finally, and most importantly, our vibrant democracy faces threats to internal and external security which together can be viewed as the challenge of National Security.
Despite grave provocations from extremists and terrorists, the people of India have remained united. They have not lost faith in our plural, secular and inclusive democracy. Across the world people look to India for inspiration. Our model of Inclusive Growth in an Open Society inspires those who seek freedom from tyranny.
A new wave of democracy demanding the empowerment of ordinary people is sweeping the world and India stands tall as a functioning democracy. We are a nation of over a billion people, plural, secular, democratic – with all the great religions of the world freely practiced here, with so many languages and cuisines, so many castes and communities – living together in an open society. This is an achievement for which every Indian can be proud.
The world acknowledges this achievement. I do believe that the world wants India to succeed because India offers hope.
Our democracy has its faults, but our people are aware of them and have shown their ability to correct these faults.
Often democracy can be frustrating – both to those who are in government and to those who expect it to be more efficient, effective and humane. But our democracy is our strength. It is the basis of our unity. It is also the most important guarantor of internal security.
Equally important for our national security is the modernisation of our defence forces. Indeed, India’s economic and energy security also require this. Our Army, our Navy and our Air Force require modernisation and upgradation of personnel and systems. Ensuring this will remain my most important task as Prime Minister.
Dear Fellow Citizens,
Today I have shared my thoughts with you to make you understand the nature of the challenges we face entering a New Year.
I have identified Five key challenges facing us. These will be on top of our policy agenda this year – Livelihood Security (education, food, health and employment), Economic Security, Energy Security, Ecological Security and National Security.
In addressing each of these five challenges we must work together as a nation, while working with like-minded nations around the world.
I assure you that I will work with all the energy at my command to ensure that we meet each of these challenges and overcome them.
Let us stand united as a people in overcoming these challenges.
I wish you the best in the year and the years ahead.
Government today introduced in Lok Sabha the Lokpal and Lokayuktas Bill, aimed at setting up the body of Lokpal at the Centre and Lokayuktas at the level of the States. Government also introduced a Bill for amending the Constitution for conferment of Constitutional status on both bodies. Government also withdrew earlier Lokpal Bill, 2011 as it decided to introduce a new comprehensive Lokpal and Lokayuktas Bill, 2011 Bill after consideration of the suggestions made by the Parliamentary Committee which recommended significant changes in the scope and content of the earlier Bill. The salient features of the proposed new Bills are as under:-
Focus on improving accountability
Establishment of new institution in the Constitution called Lokpal for the Union and Lokayukta for the States. These autonomous and independent bodies, shall have powers of superintendence and direction for holding a preliminary inquiry, causing an investigation to be made and prosecution of offences in respect of complaints under any law for the prevention of corruption.
The Bill provides a uniform vigilance and anti corruption road map for the nation, both at Centre and States. The Bill institutionalizes separation of investigation from prosecution and thereby removing conflict of interest as well as increasing the scope for professionalism and specialization.
Structure of the Institution:
Lokpal will consist of a Chairperson and a maximum of eight Members of which fifty percent shall be judicial Members. Fifty per cent of members of Lokpal shall be from amongst SC, ST, OBCs, Minorities and Women. There shall be an Inquiry Wing of the Lokpal for conducting the preliminary inquiry and an independent Prosecution Wing. Officers of the Lokpal to include the Secretary, Director of Prosecution, Director of Inquiry and other officers.
Process of selection:
The selection of Chairperson and Members of Lokpal shall be through a Selection Committee consisting of –
Prime Minister; Speaker of Lok Sabha; Leader of Opposition in the Lok Sabha; Chief Justice of India or a sitting Supreme Court Judge nominated by CJI; Eminent jurist to be nominated by the President of India A Search Committee to assist Selection Committee in the process of selection. Fifty per cent of members of Search Committee shall be from amongst SC, ST, OBCs, Minorities and Women.
Prime Minister to be brought under the purview of the Lokpal with subject matter exclusions and specific process for handling complaints against the Prime Minister. Lokpal can not hold any inquiry against the Prime Minister if allegations relate to:
- International relations;
- External and internal security of the country;
- Public Order;
- Atomic energy
Any decision of Lokpal to initiate preliminary inquiry or investigation against the Prime Minister shall be taken only by the Full Bench with a majority of 3/4th. Such proceedings shall be held in camera. Lokpal’s jurisdiction to include all categories of public servants including Group ‘A’, ‘B’, ‘C’ & ‘D’ officers and employees of Government. On complaints referred to CVC by Lokpal, CVC will send its report of PE in respect of Group ‘A’ and ‘B’ officers back to Lokpal for further decision. With respect to Group ‘C’ and ‘D’ employees, CVC will proceed further in exercise of its own powers under the CVC Act subject to reporting and review by Lokpal.
All entities receiving donations from foreign source in the context of the Foreign Contribution Regulation Act (FCRA) in excess of Rs. 10 lakhs per year are brought under the jurisdiction of Lokpal. Lokpal will not be able to initiate inquiry suo moto.
Other significant features of the Bill
No prior sanction shall be required for launching prosecution in cases enquired by Lokpal or initiated on the direction and with the approval of Lokpal. A high powered Committee chaired by the Prime Minister with leader of the opposition in the Lok Sabha and Chief Justice of India as members, will recommend selection of the Director, CBI. Provisions for confiscation of property acquired by corrupt means, even while prosecution is pending.
Lokpal to be final appellate authority on all decisions by public authorities relating to provision of public services and redressal of grievances containing findings of corruption. Lokpal to have power of superintendence and direction over any investigation agency including CBI for cases referred to them. The Bill lays down clear time lines for :
- Preliminary enquiry – three months extendable by three months.
- Investigation – six months extendable by six months.
- Trial – one year extendable by one year.
The Bill proposes to enhance punishment under Prevention of Corruption Act :
(a) Maximum punishment from 7 years to 10 years
(b) Minimum punishment from 6 months to 2 years
The Bill proposes to give legal backing to Asset Declaration by public servants. The Bill also seeks to make necessary consequential amendments in the Commissions of Inquiry Act, 1952, the Prevention of Corruption Act, 1988, the Code of Criminal Procedure, 1973, the Central Vigilance Commission Act, 2003, and the Delhi Special Police Establishment Act, 1946.
KARAN SINGH TYAGI IN THE HINDU
The Supreme Court needs to adopt a ‘pro-arbitration’ stance to provide fast, efficient and predictable remedies to foreign investors.
Global convergence and harmonisation in international commercial arbitration are particularly evident in the area of judicial control of a foreign arbitral award. In most countries, the possibility to bring before a court an action for annulment of an arbitral award rendered abroad is excluded. On the other hand, the Supreme Court of India has over the years adopted a very aggressive nationalistic posture in deciding international arbitration disputes, and is an outlier in this arena. In cases involving foreign arbitral disputes, the Supreme Court has consistently revealed an alarming propensity to exercise authority in a manner contrary to the expectations of the business community.
Observed in this light, the Chief Justice of India’s recent decision to constitute a constitutional bench to hear challenges to the Court’s earlier parochial rulings opens the most important chapter in the legal battle to convert the Indian judicial system into a pro-arbitration regime. The constitutional bench reference was made in the case of Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc. A two-judge bench of the Supreme Court had earlier in this case expressed reservation on the correctness of the operating precedent laid down in Bhatia International v. Bulk Trading S.A. (Bhatia International), and subsequently followed in Venture Global Engineering v. Satyam Computer Services (Venture Global) and other cases. Thereafter, in accordance with judicial discipline and propriety, the two-judge bench referred the matter to a three-judge bench setting out the reasons why it could not agree with the three-judge bench operating judgment in Bhatia International. Later, the three-judge bench, which also included the Chief Justice, also came to the conclusion that the ruling in Bhatia International needs to be reconsidered by a five-judge bench. The matter will now be placed before the five-judge constitutional bench on January 10, 2012.
It must be noted that the underlying principle behind the Indian Arbitration and Conciliation Act, 1996 (“1996 Act”) was to “minimise the supervisory role of the courts in the arbitral process.” However, Bhatia International, decided by the Supreme Court in 2002, laid the foundation for an excessively interventionist role of the judiciary in international arbitrations, thereby negating the intent of the 1996 Act. Part I of the 1996 Act lays down the law governing domestic arbitrations, whereas Part II, entitled ‘Enforcement of Foreign Awards,’ relates to enforcement of foreign awards in international commercial arbitrations under the New York Convention and the Geneva Convention. To make a distinction between the two, Section 2(2) of the 1996 Act provides that Part I “shall apply where the place of arbitration is in India.” However, in Bhatia International, the Supreme Court held that Indian courts had good jurisdiction even in the case of international arbitrations held outside of India. In reaching this decision, the Supreme Court construed the language in Section 2(2) and emphasised that the formulation omits the word “only” (as in “shall only apply”), so that the 1996 Act does not prohibit the application of Part I to an award made outside India. This decision is contrary to established notions of international arbitration law, which posit that municipal arbitration legislation should be restricted to arbitrations seated within the territory of such state.
The unfortunate potential consequence of Bhatia International, delivered in the context of the power of Indian courts to grant injunctions and other interim measures in foreign arbitrations, can hardly be exaggerated. In what came to be one of the most criticised decisions of the Supreme Court in recent times, the decision in Venture Global, paved the way for much increased judicial interference by Indian courts. In Venture Global, the Supreme Court relied on its reasoning in Bhatia International to hold that the “public policy” provision in Part I of the 1996 Act, applies also to foreign awards. In other words, the Supreme Court held that Indian courts would have jurisdiction to set aside an award rendered outside India, for violating Indian statutory provisions and being contrary to Indian public policy. These decisions have strangled the growth of arbitration into a successful alternative dispute resolution mechanism, and have been disastrous for foreign investors, and their Indian counterparts.
Foreign direct investment flows towards locations with a strong governance infrastructure, which includes how well the legal system enforces contracts and protects property rights. A legal system’s protection of property rights and the enforcement of contracts lower transaction costs of trade and allow resources to be transferred to those who can use them in the most productive manner. Internationally, arbitration has evolved as the major means to minimise transaction costs of trade. However, the decisions of the Supreme Court of India have the exact opposite effect. Post Bhatia International and Venture Global, parties are more hesitant in dealing with India, and insist on terms in agreements that compensate for the legal risk. The ‘risk premium’ makes a plethora of transactions commercially unviable. Consequently, the Supreme Court decisions are disincentives to any long-term investment transaction and to entrepreneurial cooperation.
In April 2010, the Ministry of Law and Justice, with the intention of reinforcing the ‘minimum judicial intervention’ standard, had proposed an amendment to correct the error made and followed since the decision in Bhatia International. The proposed amendment to Section 2(2) of the 1996 Act seeks to insert the word “only” with a view to explicitly limit the operation of Part I of the Act to domestic arbitration, albeit, with a solitary exception in the context of interim measures and assistance in collection of evidence. Unfortunately, no progress has since been made towards introducing the arbitration amendments in Parliament.
Therefore, the only light at the end of the tunnel is the constitutional bench reference, which will come up for hearing on January 10, 2012. It is to be hoped that the Supreme Court will reverse these deleterious holdings and assure the business community of its commitment in protecting and promoting international commercial arbitration in India.
(Karan Singh Tyagi, a graduate of Harvard Law School, is an associate attorney with an international law firm in Paris.)
SECRETARY CLINTON: Well, good evening, and it’s wonderful to be back in The Hague. I want to thank my colleague and friend, Foreign Minister Rosenthal, a longtime friend, and co-conspirator from time to time, Eric Schmidt. Also, thanks to Leon Willems, the director of the Free Press Unlimited, and to those of my colleagues whom I know are here, namely Carl Bildt, an incredibly connected foreign minister, along with other ministers, ambassadors, the diplomatic community, and ladies and gentlemen.
It’s a pleasure to join you here today to discuss this issue, because we think it is vitally important to every nation represented and every nation in the world; namely, internet freedom. And I want to thank Uri and the Netherlands for hosting this conference, which is a reflection of your long tradition of defending and advancing people’s human rights and fundamental freedoms everywhere, including online. And thanks as well to the representatives of nearly two dozen other governments here, all of whom I know will be working to get real solutions and recommendations agreed to tomorrow. I’m pleased we also have representatives from the private sector and civil society. So it all adds up to a multi-stakeholder event.
Now, in two days, on December 10th, we’ll celebrate Human Rights Day, which is the anniversary of the adoption of the Universal Declaration of Human Rights. And in the 63 years since that achievement, the world has been implementing a global commitment around the rights and freedoms of people everywhere, no matter where they live or who they are. And today, as people increasingly turn to the internet to conduct important aspects of their lives, we have to make sure that human rights are as respected online as offline. After all, the right to express one’s views, practice one’s faith, peacefully assemble with others to pursue political or social change – these are all rights to which all human beings are entitled, whether they choose to exercise them in a city square or an internet chat room. And just as we have worked together since the last century to secure these rights in the material world, we must work together in this century to secure them in cyberspace.
This is an urgent task. It is most urgent, of course, for those around the world whose words are now censored, who are imprisoned because of what they or others have written online, who are blocked from accessing entire categories of internet content, or who are being tracked by governments seeking to keep them from connecting with one another.
In Syria, a blogger named Anas Maarawi was arrested on July 1st after demanding that President Asad leave. He’s not been charged with anything, but he remains in detention. In both Syria and Iran, many other online activists – actually too many to name – have been detained, imprisoned, beaten, and even killed for expressing their views and organizing their fellow citizens. And perhaps the most well known blogger in Russia, Alexei Navalny, was sentenced on Tuesday to 15 days in jail after he took part in protests over the Russian elections.
In China, several dozen companies signed a pledge in October, committing to strengthen their – quote – “self-management, self-restraint, and strict self-discipline.” Now, if they were talking about fiscal responsibility, we might all agree. But they were talking about offering web-based services to the Chinese people, which is code for getting in line with the government’s tight control over the internet.
Now, these and many other incidents worldwide remind us of the stakes in this struggle. And the struggle does not belong only to those on the front lines and who are suffering. It belongs to all of us: first, because we all have a responsibility to support human rights and fundamental freedoms everywhere. Second, because the benefits of the network grow as the number of users grow. The internet is not exhaustible or competitive. My use of the internet doesn’t diminish yours. On the contrary, the more people that are online and contributing ideas, the more valuable the entire network becomes to all the other users. In this way, all users, through the billions of individual choices we make about what information to seek or share, fuel innovation, enliven public debates, quench a thirst for knowledge, and connect people in ways that distance and cost made impossible just a generation ago.
But when ideas are blocked, information deleted, conversations stifled, and people constrained in their choices, the internet is diminished for all of us. What we do today to preserve fundamental freedoms online will have a profound effect on the next generation of users. More than two billion people are now connected to the internet, but in the next 20 years, that number will more than double. And we are quickly approaching the day when more than a billion people are using the internet in repressive countries. The pledges we make and the actions we take today can help us determine whether that number grows or shrinks, or whether the meaning of being on the internet is totally distorted.
Delivering on internet freedom requires cooperative actions, and we have to foster a global conversation based on shared principles and with the right partners to navigate the practical challenges of maintaining an internet that is open and free while also interoperable, secure, and reliable. Now, this enterprise isn’t a matter of negotiating a single document and calling the job done. It requires an ongoing effort to reckon with the new reality that we live in, in a digital world, and doing so in a way that maximizes its promise.
Because the advent of cyberspace creates new challenges and opportunities in terms of security, the digital economy, and human rights, we have to be constantly evolving in our responses. And though they are distinct, they are practically inseparable, because there isn’t an economic internet, a social internet, and a political internet. There is just the internet, and we’re here to protect what makes it great.
Tomorrow’s sessions provide the opportunity for us to make concrete progress. At this kickoff event, I’d like to briefly discuss three specific challenges that defenders of the internet must confront.
The first challenge is for the private sector to embrace its role in protecting internet freedom, because whether you like it or not, the choices that private companies make have an impact on how information flows or doesn’t flow on the internet and mobile networks. They also have an impact on what governments can and can’t do, and they have an impact on people on the ground.
In recent months, we’ve seen cases where companies, products, and services were used as tools of oppression. Now, in some instances, this cannot be foreseen, but in others, yes, it can. A few years ago, the headlines were about companies turning over sensitive information about political dissidents. Earlier this year, they were about a company shutting down the social networking accounts of activists in the midst of a political debate. Today’s news stories are about companies selling the hardware and software of repression to authoritarian governments. When companies sell surveillance equipment to the security agency of Syria or Iran or, in past times, Qadhafi, there can be no doubt it will be used to violate rights.
Now, there are some who would say that in order to compel good behavior by businesses, responsible governments should simply impose broad sanctions, and that will take care of the problem. Well, it’s true that sanctions and export controls are useful tools, and the United States makes vigorous use of them when appropriate; and if they are broken, we investigate and pursue violators. And we’re always seeking to work with our partners, such as the European Union, to make them as smart and effective as possible. Just last week, for example, we were glad to see our EU partners impose new sanctions on technology going to Syria.
So sanctions are part of the solution, but they are not the entire solution. Dual-use technologies and third-party sales make it impossible to have a sanctions regime that perfectly prevents bad actors from using technologies in bad ways. Now, sometimes companies say to us at the State Department, “Just tell us what to do, and we’ll do it.” But the fact is, you can’t wait for instructions. In the 21st century, smart companies have to act before they find themselves in the crosshairs of controversy.
I wish there were, but there isn’t, an easy formula for this. Making good decisions about how and whether to do business in various parts of the world, particularly where the laws are applied haphazardly or they are opaque, takes critical thinking and deliberation and asking hard questions. So what kind of business should you do in a country where it has a history of violating internet freedom? Is there something you can do to prevent governments from using your products to spy on their own citizens? Should you include warnings to consumers? How will you handle requests for information from security authorities when those requests come without a warrant? Are you working to prevent post-purchase modifications of your products or resale through middlemen to authoritarian regimes?
Now, these and others are difficult questions, but companies must ask them. And the rest of us stand ready to work with you to find answers and to hold those who ignore or dismiss or deny the importance of this issue accountable. A range of resources emerged in recent years to help companies work through these issues. The UN Guiding Principles on Business and Human Rights, which were adopted in June, and the OECD Guidelines for Multinational Enterprises both advise companies on how to meet responsibilities and carry out due diligence. And the Global Network Initiative, which is represented here tonight, is a growing forum where companies can work through challenges with other industry partners, as well as academics, investors, and activists.
And of course, companies can always learn from users. The Silicon Valley Human Rights Conference in October brought together companies, activists, and experts to discuss real life problems and identify solutions. And some participants issued what they called the Silicon Valley Standard for stakeholders to aspire to.
Working through these difficult questions by corporate executives and board members should help shape your practices. Part of the job of responsible corporate management in the 21st century is doing human rights due diligence on new markets, instituting internal review procedures, identifying principles by which decisions are to be made in tough situations, because we cannot let the short-term gains that all of us think are legitimate and worth seeking jeopardize the openness of the internet and human rights of individuals who use it without it coming back to haunt us all in the future. Because a free and open internet is important not just to technology companies but to all companies. Whether it’s run with a single mobile phone or an extensive corporate network, it’s hard to find any business today that doesn’t depend in some way on the internet and doesn’t suffer when networks are constrained.
And also I would add that, in this day, brand and reputation are precious corporate assets. Companies that put them at risk when they are careless about freedom of the internet can often pay a price.
So I think it’s particularly appropriate and important that the private sector is strongly represented at this meeting and that Google is co-hosting tonight’s event. In both securing the promise of a free and open internet and managing the risks that new technologies raise, the private sector is a crucial partner.
But even as companies must step up, governments must resist the urge to clamp down, and that is the second challenge we face. If we’re not careful, governments could upend the current internet governance framework in a quest to increase their own control. Some governments use internet governance issues as a cover for pushing an agenda that would justify restricting human rights online. We must be wary of such agendas and united in our shared conviction that human rights apply online.
So right now, in various international forums, some countries are working to change how the internet is governed. They want to replace the current multi-stakeholder approach, which includes governments, the private sector, and citizens, and supports the free flow of information, in a single global network. In its place, they aim to impose a system cemented in a global code that expands control over internet resources, institutions, and content, and centralizes that control in the hands of governments.
Now, in a way, that isn’t surprising, because governments have never met a voice or public sphere they didn’t want to control at some point or another. They want to control what gets printed in newspapers, who gets into universities, what companies get oil contracts, what churches and NGOs get registered, where citizens can gather, so why not the internet? But it’s actually worse than that. It’s not just that they want governments to have all the control by cutting out civil society and the private sector; they also want to empower each individual government to make their own rules for the internet that not only undermine human rights and the free flow of information but also the interoperability of the network.
In effect, the governments pushing this agenda want to create national barriers in cyberspace. This approach would be disastrous for internet freedom. More government control will further constrict what people in repressive environments can do online. It would also be disastrous for the internet as a whole, because it would reduce the dynamism of the internet for everyone. Fragmenting the global internet by erecting barriers around national internets would change the landscape of cyberspace. In this scenario, the internet would contain people in a series of digital bubbles, rather than connecting them in a global network. Breaking the internet into pieces would give you echo chambers rather than an innovative global marketplace of ideas.
The United States wants the internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the internet itself from plans that would undermine its fundamental characteristics.
Now, those who push these plans often do so in the name of security. And let me be clear: The challenge of maintaining security and of combating cyber crime, such as the theft of intellectual property, are real – a point I underscore whenever I discuss these issues. There are predators, terrorists, traffickers on the internet, malign actors plotting cyber attacks, and they all need to be stopped. We can do that by working together without compromising the global network, its dynamism, or our principles.
Now, there’s a lot to be said about cyber security. I won’t go into that tonight. I’ll be talking about it more, but my basic point is that the United States supports the public-private collaboration that now exists to manage the technical evolution of the internet in real time. We support the principles of multi-stakeholder internet governance developed by more than 30 nations in the OECD earlier this year. A multi-stakeholder system brings together the best of governments, the private sector, and civil society. And most importantly, it works. It has kept the internet up and running for years all over the world. So to use an American phrase, our position is, “If it ain’t broke, don’t fix it.” And there’s no good reason to replace an effective system with an oppressive one.
The third and final challenge is that all of us – governments, private, sector, civil society, must do more to build a truly global coalition to preserve an open internet. And that’s where all of you here today come in, because internet freedom cannot be defended by one country or one region alone. Building this global coalition is hard, partly because for people in many countries the potential of the internet is still unrealized. While it’s easy for us in the United States or in the Netherlands to imagine what we would lose if the internet became less free, it is harder for those who have yet to see the benefit of the internet in their day to day lives. So we have to work harder to make the case that an open internet is and will be in everyone’s best interests. And we have to keep that in mind as we work to build this global coalition and make the case to leaders of those countries where the next generation of internet users live. These leaders have an opportunity today to help ensure that the full benefits are available to their people tomorrow, and in so doing, they will help us ensure an open internet for everyone.
So the United States will be making the case for an open internet in our work worldwide, and we welcome other countries to join us. As our coalition expands, countries like Ghana and Kenya, represented here tonight, Mongolia, Chile, also represented, I saw, Indonesia and others are sure to be effective at bringing other potential partners on board who have perspectives that can help us confront and answer difficult questions. And new players from governments, the private sector, and civil society will be participating in managing the internet in coming decades as billions more people from all different regions go online.
So let’s lay the groundwork now for these partnerships that will support an open internet in the future. And in that spirit, I want to call attention to two important items on your agenda for tomorrow. The first will be to build support for a new cross-regional group that will work together in exactly the way that I’ve just discussed, based on shared principles, providing a platform for governments to engage creatively and energetically with the private sector, civil society, and other governments.
Several countries have already signaled their intention to join. I hope others here will do the same, and going forward, others will endorse the declaration that our Dutch hosts have prepared. It’s excellent work, Uri, and we thank you for your leadership.
The second item I want to highlight is a practical effort to do more to support cyber activists and bloggers who are threatened by their repressive governments. The Committee to Protect Journalists recently reported that of all the writers, editors, and photojournalists now imprisoned around the world, nearly half are online journalists. The threat is very real. Now, several of us already provide support, including financial support, to activists and bloggers, and I was pleased that the EU recently announced new funding for that purpose. And I know that other governments, including the Netherlands, are also looking for ways to help out.
By coordinating our efforts, we can make them go further and help more people. Earlier, I heard what the foreign minister here is proposing. And we have talked about creating a digital defenders partnership to be part of this global effort. We hope tomorrow’s meetings will give us a chance to discuss with other potential partners how such a partnership could work.
So while we meet here in the Netherlands in this beautiful city to talk about how to keep the internet open, unfortunately some countries are pulling very hard in the opposite direction. They’re trying to erect walls between different activities online, economic exchanges, political discussions, religious expression, social interaction, and so on. They want to keep what they like and which doesn’t threaten them and suppress what they don’t. But there are opportunity costs for trying to be open for business but closed for free expression, costs to a nation’s education system, political stability, social mobility, and economic potential.
And walls that divide the internet are easier to erect than to maintain. Our government will continue to work very hard to get around every barrier that repressive governments put up, because governments that have erected barriers will eventually find themselves boxed in, and they will face the dictator’s dilemma. They will have to choose between letting the walls fall or paying the price for keeping them standing by resorting to greater repression and to escalating the opportunity cost of missing out on the ideas that have been blocked and the people who have disappeared.
I urge countries everywhere, instead of that alternative dark vision, join us here today in the bet that we are making, a bet that an open internet will lead to stronger, more prosperous countries. This is not a bet on computers or mobile phones. It’s a bet on the human spirit. It’s a bet on people. And we’re confident that together, with our partners and government, the private sector, and civil society around the world, who have made this same bet like all of you here tonight, we will preserve the internet as open and secure for all.
On the eve of Human Rights Day, this meeting reminds us of the timeless principles that should be our north star. And a look at the world around us and the way it is changing reminds us there is no auto-pilot steering us forward. We have to work in good faith and engage in honest debate, and we have to join together to solve the challenges and seize the opportunities of this exciting digital age. Thank you all for being committed to that goal and that vision. The United States pledges our support and our partnership going forward.
Thank you all very much.