Back to base: Editorial on assault to basic structure of the Constitution

 The government’s attitudes, not always obviously articulated but quietly nurtured, are reflected in daily life, from cow vigilantism to the increase of suicides among Dalit students

Few texts are as dynamic as the Indian Constitution. It represents, through its interpretations, applications and amendments the people’s growing understanding of the gifts of freedom and equality that it symbolises, and the wisdom and independence of the judiciary. Fifty years after the Kesavananda Bharati judgment, which defined the basic structure of the Constitution for the first time, the nobility of the vision it enshrines and the perspicacity of the judges who discerned its foundational values need to be recalled with special emphasis. Although Article 368 of the Constitution allows amendment of its provisions through bills in either House of Parliament, the 1973 judgment declared that no change could be made to its ‘basic structure’, that is, the supremacy of the Constitution, the republican and democratic form of government and it federal dimension, the secular nature of the Constitution and the separation of powers between the executive, legislature and the judiciary. Added to this were the fundamental rights and freedoms of the people listed in it and the building of a welfare state described in Part IV of the document. The basic structure, too, is dynamic, because it allows for inferences appropriate for a changing society; the judiciary’s independence can be immediately inferred while the right to privacy, for example, was a later inference from other enshrined rights of the individual.

The judges defining the basic structure expressed the possibility that, without this doctrine, a party with two-thirds majority in Parliament could mount an assault on the Constitution and change its character. Assaults on constitutional principles and individual freedoms and choices, on the spirit of secularism, equality, and democratic practices have, ironically, become rather familiar in contemporary India. The government’s attitudes, not always obviously articulated but quietly nurtured, are reflected in daily life, from cow vigilantism to the increase of suicides among Dalit students. Occupying one of the highest constitutional positions, the vice-president said that the Kesavananda Bharati judgment was ‘incorrect’, since in a democracy the judiciary cannot fetter Parliament’s right to amend whatsoever it pleases in the Constitution. As the context was the Centre’s desire to overturn the collegium system of judges’ appointments, this was an intriguing use of the concept of ‘democracy’ which assumes an independent judiciary. There is no better time to celebrate and assert the basic structure doctrine judgment.

Source: The Telegraph, 27/04/23

People’s document

 “Manavta ki jaan hai, Samata pehchan hai, Bharat ki shaan hai, Samvidhan hai vo, Bharat ka Samvidhan hai (The Constitution is the essence of humanity, an identity of equality, and the pride of India).” With this catchy song, youth artist groups led by Aakash Parmar in Thane, Maharashtra, are using music and other art forms to popularise the values of the Constitution.

The accessibility of the Indian Constitution has been a contested issue. This is because the Constitution has been restricted to the legal elite. Yet, communities are owning it and making it accessible using innovative means. For instance, Maharashtra, with its glorious legacy of emancipation nurtured by B.R. Ambedkar, Jyotiba Phule, Savitribai Phule and others, has inspired citizen-led groups to engage with the Constitution by invoking indigenous histories and glories. As the historian, Ernest Renan, has argued, a heroic past and great men form the social capital on which the idea of the nation is based. By invoking the teachings of Ambedkar and Phule to engage the masses with such constitutional values as equality, fraternity and dignity, these groups are using the past to create a constitutionally aware citizenry. These initiatives reaffirm the claim made by the scholar, Arvind Narrain, in his book on India’s undeclared emergency that India’s tradition of resistance is rooted in its culture.

The movement of constitutional literacy is not limited to the indigenous method only. Youth groups are using the method employed by the Brazilian radical revolutionary artist, Augusto Boal, who devised the idea of the theatre of the oppressed. A unique feature of this art form is that it puts spectator and performer on an equal footing. This theatrical art form is used by youth groups in Mumbai led by Priyapal to propagate the essence of Constitutional values. The group uses forum theatre, a technique of the theatre of the oppressed, whereby the voiceless are given a voice. Mob lynching, domestic violence, the right to choose a partner are some of the themes that have been explored to reflect the values enshrined in the Constitution.

The engagement with the Constitution has emerged as an effective tool to shape and assert the idea of citizenry. Thus, citizen-driven initiatives are engaging with academic, artistic and creative means to sustain and cultivate the constitutional culture. One such approach across Maharashtra is the community outreach on the Constitution that has forged the idea of Samvidhan Pracharak (Constitution Facilitator). These pracharaks facilitate conversations on the Constitution in the layman’s language. Spread over 20 districts of Maharashtra, Samvidhan Pracharaks have trained more than 3,000 volunteers across the state. These groups, led by Nagesh Jadhav, Sandeep Akhade and Nilesh, say that they engage with diverse sections of society in creative but specific ways. For instance, ‘Children’s Café’ and ‘Coffee with Constitution’ are specially designed programmes to include children and the youth in literacy programmes on the Constitution.

These groups are also crafting a new language for the ordinary people for their engagement with the Constitution. Scholars have argued that knowledge of the Constitution prepares citizens not only for a participatory role but also enables them to defend the Constitution against attacks. In his book, A People’s Constitution: The Everyday Life of Law in the Indian Republic, Rohit De revealed that the constitutional culture was shaped by ordinary people who posed faith in the nation’s first document.

This collective cultivation of adopting constitutional values is a sign that it is the people who own the Constitution. As India celebrates the 74th anniversary of the enactment of the Constitution, these efforts are a beacon of hope.

Rajesh Ranjan 

Source: Telegraph, 15/02/23

What is delegated legislation

 In upholding the Centre’s 2016 decision on demonetisation, one of the key questions to decide for the Supreme Court was whether Parliament gave excessive powers to the Centre under the law to demonetise currency. While the majority ruling upheld the validity of the delegated legislation, the dissenting verdict noted that excessive delegation of power is arbitrary. What is delegated legislation?

What is delegated legislation?

Parliament routinely delegates certain functions to authorities established by law since every aspect cannot be dealt with directly by the law makers themselves. This delegation of powers is noted in statutes, which are commonly referred to as delegated legislations.The delegated legislation would specify operational details, giving power to those executing the details. Regulations and by-laws under legislations are classic examples of delegated legislation. A 1973 Supreme Court ruling explains the concept as: “The practice of empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State. At the same time it has to be borne in mind that our Constitution-makers have entrusted the power of legislation to the representatives of the people, so that the said power may be exercised not only in the name of the people but also by the people speaking through their representatives. The role against excessive delegation of legislative authority flows from and is a necessary postulate of the sovereignty of the people.”

What was the delegation of power in the demonetisation case?

Section 26(2) of the Reserve Bank of India Act, 1934 essentially gives powers to the Centre to notify that a particular denomination of currency ceases to be legal tender.

The provision reads: “On recommendation of the Central Board the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender.” Here, Parliament, which enacted the RBI Act, is essentially delegating the power to alter the nature of legal tender to the central government. The Centre exercised that power by issuing a gazette notification, which is essentially the legislative basis for the demonetisation exercise.

Why was this challenged?

The petitioner’s challenge was this: “In the event that Section 26(2) is held to permit demonetization, does it suffer from excessive delegation of legislative power thereby rendering it ultra vires the Constitution?”

The Constitution gives law-making powers to the Parliament. While operational aspects can be delegated to statutory bodies, essential powers cannot be delegated. Also, the delegation must be with sufficient guidelines on how the power can be used. The petitioners in the demonetisation case argued that since Section 26(2) contains no policy guidelines on how the Centre can exercise its powers, it is arbitrary and therefore, unconstitutional.

Why is excessive delegation power an issue?

A 1959 landmark ruling in Hamdard Dawakhana v Union of India, the Supreme Court had struck down delegation of powers on the grounds that it was vague. A Constitution Bench considered the validity of certain provisions of the Drug and Magic Remedies (Objectionable Advertisements) Act that prohibited advertisements of certain drugs for treatment of certain diseases and dealt with the powers of search, seizure and entry.

The Court held that the central government’s power of specifying diseases and conditions as given in Section 3(d) is ‘uncanalised’, ‘uncontrolled’, and going beyond the permissible boundaries of valid delegation. Hence, the same was deemed unconstitutional.

“The question for decision then is, is the delegation constitutional in that the administrative authority has been supplied with proper guidance. In our view the words impugned are vague. Parliament has established no criteria, no standards and has not prescribed any principle on which a particular disease or condition is to be specified in the Schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease,” the Court had said. The Court applies the “policy and guideline” test to decide the constitutionality of the delegated legislation.

The Attorney General for India argued that the RBI Act itself has guidance for exercise of delegated powers. He cited the Preamble and Section 3 of the Act as guidance on the purpose of the law and the Centre’s role in “regulating” monetary policy.

Section 3 deals with establishment and incorporation of Reserve Bank.

What did the Court decide?

The majority verdict held that since the delegation of power is to the Centre which is anyway answerable to the Parliament, the delegation power cannot be struck down.

“In case the Executive does not act reasonably while exercising its power of delegated legislation, it is responsible to Parliament who are elected representatives of the citizens for whom there exists a democratic method of bringing to book the elected representatives who act unreasonably in such matters,” the court said. The dissenting opinion, however, disagreed with this view. First, Justice BV Nagarathna held that Centre could not have exercised its delegated powers because Section 26(2) of the RBI only gives powers to the Centre when the recommendation is “initiated” by the RBI Central Board.From a reading of the record presented by the Centre, the judge held that it is clear that the proposal originated from the Centre and therefore the Centre could not have drawn its powers to demonetise from Section 26(2).

The dissenting view also held that, even if the Centre has the power under Section 26(2) allowing for demonetisation of “any” notes is a vast power that is arbitrary and therefore unconstitutional.

“The Central Government in its wisdom may also initiate the process of demonetisation as has been done in the instant case. But what is important and to be noted is that the said power cannot be exercised by the mere issuance of an executive notification in the Gazette of India. In other words, when the proposal to demonetise any currency note is initiated by the Central Government with or without the concurrence of the Central Board of the Bank, it is not an exercise of the executive power of the Central Government under subsection (2) of Section 26 of the Act. In such a situation, as already held, the Central Government would have to resort to the legislative process by initiating a plenary legislation in the Parliament,” the dissenting opinion stated. Justice Nagarathna emphasised that demonetisation of all series of notes, at the instance of the central government, is far more serious than the demonetisation of particular series by the bank, mandating the need for a legislation as opposed to an executive action.

Source: Indian Express, 10/01/23

Anti-hate speech law gains traction; where to draw the line is contentious

 The Nupur Sharma episode, which recently brought the country to a boil, and a Delhi High Court judge’s observations on that, threw up many questions for law and hate speech jurisprudence in India. The foremost among them is: Is an exclusive law to regulate hate speech needed in India?

The legal opinion on this is divided and the unfolding discourse on this question has inevitably juxtaposed hate speech against free speech.

For many, the freedom of speech is nearly absolute. For them, there can be no curbs, especially no legal curbs, on freedom of expression in the name of curbing hate speech. In their view, there are provisions in the existing criminal law which can well take care of such violations.

For others, freedom of speech cannot be absolute. Hate speech is not free speech, in the sense of being a matter of opinion, but a device for incitement for hate crimes and for instigating sectarian violence. Necessary legal restrictions should be in place to curb that.

What’s hate speech?

There is no commonly accepted legal definition of hate speech globally. The United Nation’s Strategy and Plan of Action against Hate Speech document, released in June 2019, defines hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or group on the basis of who they are; in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender, or other identity factor.” This is often rooted in, and generates intolerance and hatred and, in certain contexts, can be demeaning and divisive, the document explains.

Though there is not yet a widely endorsed UN Convention against Hate Speech, rather than prohibiting hate speech as such, international law — as understood and practiced by the UN — prohibits incitement to discrimination, hostility, and violence, which may also include or lead to terrorism or atrocity crimes.

The UN strategy document, however, clarifies that “Hate speech that does not reach the threshold of incitement is not something that international law requires states to prohibit.” Still, “it is important to underline that even when not prohibited, hate speech may be harmful,” the document explains.

Often, it becomes difficult to draw the line between freedom of expression and an expression loaded with instigative hatred. Often, only the outcome or even the potential outcome can make a difference post facto.

Precursor to hate crimes

Hate speech can also target different sections. Nupur Sharma’s insensitive observation about the Prophet constitutes a classic example of communal hate speech against the Muslim minority. Not only fundamentalists of different religious hues but even political parties opposed to each other spread hate speech against each other for their own political mobilisation. 

Major political parties have their own IT cells which do not limit themselves to tracking developments through the digital media and disseminating party’s views on current issues but maintain a huge informal network of “volunteers” who are regularly fed with instructions to act as troll brigades in the social media.

And, in Indian public life, hardly a week passes without some instance of casteist slur against individuals from Dalit, ST or even OBC backgrounds. The latest example is the case involving Tamil Nadu’s DMK minister Rajakannappan. A video of Rajakannappan abusing a Block Development Officer of Dalit origin using casteist remarks went viral on the media this March. 

S Kumaraswamy, a prominent lawyer in Tamil Nadu, told The Federal, “Such transgressions of law by individuals need to be condemned but they do not justify a new law. The effectiveness of our demands also depends on the nature of those in power. Such a law in the hands of authoritarian rulers would only be an added instrument in their hands for persecution of critics and for stifling the voices of protest of minorities.”

More tragic instance of hate is the case of suicide by Payal Tadvi, a medico from Scheduled Tribe background. Tadvi died by suicide in Mumbai in May 2019, unable to bear the casteist slurs by her senior colleagues. This came barely three years after the Rohit Vemula episode in Hyderabad in January 2016 shook the conscience of the civilised people across the country. 

In 2019 itself, there was a spate of suicides by medicos — in Gujarat, Hubbali in Karnataka, and in Punjab. This January, a PG student in BMC Hospital in Mumbai attempted suicide due to a casteist insult.

We are familiar with hate politics and hate crimes against migrants, and linguistic and ethnic minorities. People from the Hindi belt are insulted as bhaiyas in metropolitan Mumbai. But young people from the North-East are abused as ‘chinkis’ in the same Hindi belt, and even in Delhi. In a display of retaliatory hate, poor labourers from UP, Bihar and Jharkhand face racist attacks in the North-East. These events show a continuum from hate speech to hate crimes.

Hate speech in media

Hate speeches are common during election campaigns. But they are not limited to the bitterly fought electoral battles. In the digital age, social media has emerged as a key arena of hate speech. 

Twitter received 3,992 content takedown notices from the Government of India between July and December 2021 and Google 9,000 notices in six years between 2014 and 2020. 

Internet freedom activists allege that not all these were hate messages. Rather, many postings genuinely critical of the government for valid reasons were also asked to be removed. Still, many are hate messages aimed at triggering riots. They give the handle to the government to curb even the genuinely critical messages.

Hateful messages are not limited to social media. They are creeping into the mainstream media too. After all, the mainstream media also has its fringes, especially the vernacular media. 

While the mainstream media outfits have shown unanimity in opposing tooth and nail any government attempt at regulating them, they do face the internal challenge of beefing up their self-regulation.

A governance challenge

The Nupur Sharma episode showed that it is only very adverse diplomatic and political fallouts that force the reluctant government to intervene and act. All governments periodically confront such challenges. However, in mature democracies, there is also a realisation that tackling hate speech should not result in limiting or prohibiting freedom of speech. 

But there is a growing feeling that some policy and legal curbs should be put in place to prevent hate speech from escalating into incitement, discrimination, hostility, and violence. Still, when it comes to policy-making, many democracies are still grappling with issues like how to judge what constitutes hate speech and what falls within the realm of free speech and, from the point of view of enforcement, in institutional terms, who would decide and on what basis.

Law to regulate hate speech

The need for a law to regulate hate speech was coherently articulated first in a 2012 book titled The Harm in Hate Speech by Jeremy Waldron, the philosopher of law attached to the New York University School of Law. The main argument of the book is that hate speech should not be protected by the First Amendment.

The First Amendment was added to the US Constitution in 1791 which prohibited the US Congress from making any law that “abridged the freedom of speech or of the press.” The First Amendment thus gave absolute protection to freedom of speech and press.

However, despite the very powerful First Amendment legacy, the history of constitutional law in the US shows that the US Supreme Court has time and again clarified that libellous utterances always fall outside the ambit of the First Amendment. Likewise, it exempted hate speech as well. In 1952, the US Supreme Court upheld an Illinois law that made it a crime to publish material exposing any racial or religious group to “contempt, derision, or obloquy.”

Those who favour a law to regulate hate speech base their opinion on the fact that hate speech undermines the dignity of minorities through collective libel. In their opinion, right to life means right to a life with dignity. It is this dignity that enables them to live as equals in a society.

The proponents of legal curbs on hate speech dismiss apprehensions on their misuse by citing the examples of Canada, Denmark, Germany, New Zealand, and the United Kingdom which have already put in place regulations restricting hate speech. Such regulations have not led to political censorship, they argue.

Coming to the Indian context, Ravindra Garhia, an activist-lawyer who was earlier part of the Lawyers’ Collective founded by eminent jurist Indira Jaisingh and who is now practising independently in the Supreme Court, told The Federal, “India urgently needs a law empowering the Election Commission to disqualify a political party in the ongoing polls if its spokespersons and chief ministers indulge brazen hate speech to polarise voters and even to de-register them for six years for repeat offences.”

Opposition leader Rahul Gandhi demanded in the Lok Sabha that Ajay Mishra Teni, whose hate speech triggered the farmers’ demo in Lakhimpur-Kheri against which his son rammed his vehicle, be dropped from the Union Council of Ministers. If there is a stringent law against hate speech, the Dharma Sansad in Haridwar would not have dared to brazenly call for killing Muslims, a Samajwadi Party leader in Prayagraj opined.

What works against such law

Some opponents of a law to curb hate speech feel that minor transgressions of civility in public discourse are also part of public life in a democracy and we should learn to live with that in the larger interest of democracy. In other words, curbing freedom of expression has far greater implications for democracy than the relatively less dangerous nuisance of hate speech by the fringe.

In their opinion, political liberty should be unconditional and the spirit of the First Amendment also found a popular expression in the saying, “I hate what you say but I will defend to the death your right to say it.” Their fears of misuse of such laws are well-founded in a scenario where political forces with majoritarian inclinations have taken over power.

Professor Babu Mathew, who teaches constitutional law at National Law School of India University (NLSIU), Bangalore told The Federal: “It is not because of the absence of law that problems like hate speech are persisting. There are ample provisions in the existing criminal laws to effectively curb that. It is because the enforcing institutions are compromised that people engaging in hate crimes get away. 

“But then if there is a new law with scope for its misuse, it would be abundantly misused. Well, there can be some inbuilt guarantees in the law itself against its misuse. But then in that case the law itself would never be invoked.” Saying this,  Babu stressed the need for a vigilant public opinion to get the institutions to act.

Law with safeguards

In a polarised atmosphere where hate is moving mainstream and where even people in power are engaged in the “Other-ing” of minorities and even at the social level the social media fora have become platforms of bigotry, some regulations in the law book can help in the efforts of saner sections of society against hate speech. The challenge is to ensure proper safeguards in the law against its misuse and building a strong public opinion for its enforcement.

Source: The Federeal, 9/08/22

Why does Rajya Sabha have ‘nominated’ MPs, and who gets nominated?

 The government on Wednesday (July 6) nominated musician Ilaiyaraaja, track-and-field icon PT Usha, Telugu screenwriter V Vijayendra Prasad, and philanthropist and spiritual leader Veerendra Heggade to Rajya Sabha. The four new entrants to Rajya Sabha belong to four southern states, Tamil Nadu, Kerala, Andhra Pradesh, and Karnataka.

Ilaiyaraaja, Usha, Prasad, and Heggade will serve until July 2028. The Upper House of Parliament now has nine nominated members — the other five being lawyer Mahesh Jethmalani, dancer Sonal Mansingh, politician Ram Shakal, author and columnist Rakesh Sinha, and former Chief Justice of India Ranjan Gogoi. Three nominated positions are currently vacant.

What does the Constitution say about nominated members?

Article 80 of the Constitution (“Composition of the Council of States”) says “The Council of States shall consist of (a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and (b) not more than two hundred and thirty-eight representatives of the States and of the Union territories.” Clause 3 of the article layer down the qualifications for the appointment: “The members to be nominated by the President…shall consist of persons having special knowledge or pracLiterature, science, art and social service.”

Since Rajya Sabha was constituted in 1952, a total 142 individuals have been nominated as its members. The list includes scholars, jurists, educationists, historians, scientists, litterateurs, journalists, engineers, economists, administrators, artistes, sportspersons, social workers, and politicians, mostly with loyalty to the government of the day.

What is the role of nominated members?

Nominated members of Rajya Sabha enjoy all the powers and privileges to which the elected MPs are entitled. They can take part in the proceedings of the House in the normal manner, even though there has been criticism that several nominated members have poor attendance and do not appear to show much interest in legislative work. In this context, cricketer Sachin Tendulkar, actor Rekha, and businesswoman Anu Aga have faced criticism in recent years.

Nominated members are not allowed to vote in the election of the President. They do have the right to vote in the election of the Vice-President, however.tical experience in respect of such matters as the following, namely:—

Why are members nominated to the Rajya Sabha?

Pitching for a provision in the Constitution to allow eminent persons to be nominated to the Council of States, N Gopalaswami Ayyangar, who was part of the Constitution Drafting Committee, said: “We also give an opportunity, perhaps, to seasoned people who may not be in the thickest of the political fray, but who might be willing to participate in the debate with an amount of learning and importance which we do not ordinarily associate with the House of the People (Lok Sabha).”

The first list of 12 Presidential nominees perfectly represented this sentiment: Zakir Husain, who later became the President of India; historians Kalidas Nag and Radha Kumud Mookerji; the eminent Hindi poet Maithilisharan Gupt; Gandhian author Kakasaheb Kalelkar; scientist Satyendranath Bose; social worker N R Malkani; danseuse Rukmini Devi Arundale; Gandhian scholar J M Kumarappa; jurist Alladi Krishnaswami; actor Prithviraj Kapoor; and medical scientist Major General S S Sokhey.

Prime Minister Jawaharlal Nehru told Lok Sabha on May 13, 1953: “The President has nominated some members of the Council of States who, if I may say so, are among the most distinguished…in arts, science, etc…. They do not represent political parties or anything, but they represent really the high watermark of literature or art or culture or whatever it may be.”

Politicisation of the nominated category

Over time, the high ideal of the nomination came to be eroded. Ruling dispensations have repeatedly used the nominated category to shore up their numbers in the House, to dispense favours, and to get their preferred individuals into Parliament.

While a nominated member can join a political party within six months of taking his/ her seat in the House, even those who remain technically independent are assumed to be aligned with the ruling regime.Maragatham Chandrasekar, Congress general secretary and former minister, served three terms as nominated member of Rajya Sabha from 1970 to 1988 as a “social worker”. Former Assam Chief Minister Anwara Taimur (who was nominated in 1988), Indira Gandhi’s close associate Nirmala Deshpande (nominated in 1997 and 2003), former minister Mani Shankar Aiyyar (nominated in 2010), Madan Bhatia (nominated in 1982 and 1988), Sat Paul Mittal (nominated in 1976 and 1982) all had close allegiance to the Congress.

The BJP nominated former Union minister Subramanian Swamy in 2016, a one-man army crusading against the Nehru-Gandhi family in various courts. Its journalist nominees, the late Chandan Mitra and Swapan Dasgupta, were/are closely associated with the party, and contested elections on BJP tickets. Actor Hema Malini, nominated in 2003, is a BJP politician. Cricketer-turned-politician Navjot Singh Sidhu was aligned with the BJP before joining the Congress. Former Lok Sabha member from Robertsganj Ram Shakal entered Rajya Sabha in 2018.

Source: Indian Express, 7/07/22

How the Vice President of India is elected, what the Constitution says about the post

 The Election Commission of India on Tuesday (July 5) issued the notification for the election of the Vice President of India. The term of office of Vice President M Venkaiah Naidu comes to an end on August 10. The election is scheduled for August 6, and July 19 is the last date for filing nominations.

Neither the NDA nor the Opposition have announced their candidate yet, but Minority Affairs Minister Mukhtar Abbas Naqvi and Steel Minister RCP Singh resigned from their posts on Wednesday (July 6), triggering speculation that Naqvi, in particular, could be the government’s nominee for the election. Another name doing the rounds is that of Kerala Governor Arif Mohammad Khan.

Office of the Vice President

Article 63 of the Constitution states that “there shall be a Vice-President of India”. Under Article 64, the Vice-President “shall be ex officio Chairman of the Council of the States” (Rajya Sabha). Article 65 says that “in the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal, or otherwise, the Vice-President shall act as President until the date on which a new President…enters upon his office”.

The Vice-President shall also discharge the functions of the President when the latter is unable to do so “owing to absence, illness or any other cause”.

During this period, the Vice-President shall “have all the powers and immunities of the President and be entitled to… (the) emoluments, allowances and privileges” that are due to the President. The office of the Vice-President of India is the second-highest constitutional office after that of the President, and ranks second in the order of precedence.

Election of the Vice-President

Article 66 lays down the process of the election of the Vice-President.

It says the Vice-President “shall be elected by the members of an electoral college consisting of the members of both Houses of Parliament in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot”.

For the 16th Vice-Presidential Election, 2022, the Electoral College consists of 233 elected members of Rajya Sabha, 12 nominated members of Rajya Sabha, and 543 elected members of Lok Sabha, adding up to 788 members. In the system of proportional representation by means of the single transferable vote, the elector has to mark preferences against the names of the candidates.

“Preference can be marked in the international form of Indian numerals, in Roman form, or in the form in any recognised Indian languages… The elector can mark as many preferences as the number of candidates. While the marking of the first preference is compulsory for the ballot paper to be valid, other preferences are optional,” the Election Commission of India said in a release issued on June 29.

Under the Constitution, the Vice-President “shall not be a member of either House of Parliament or of a House of the Legislature of any State”. If a member of any of these Houses is elected to the post, “he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Vice-President”.

Eligibility and term of office

Article 66(3) says “No person shall be eligible for election as Vice-President unless he — (a) is a citizen of India; (b) has completed the age of thirty-five years; and (c) is qualified for election as a member of the Council of States”.

Under Article 66(4), “A person shall not be eligible for election as Vice-President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.”

Article 67 lays down that the “Vice-President shall hold office for a term of five years from the date on which he enters upon his office”. However, the Vice-President “shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office”.

The Vice-President may leave office before the end of his term by resigning to the President, or he “may be removed…by a resolution of the Council of States passed by a majority of all the then members of the Council and agreed to by the House of the People”.

What if the election is disputed?

Article 71 of the Constitution deals with “Matters relating to, or connected with, the election of a President or Vice-President”. It says that “all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final”.

Should the Supreme Court declare the election of the President or Vice-President void however, “acts done by him in the exercise and performance of the powers and duties of the office of President or Vice-President,…on or before the date of the decision of the Supreme Court shall not be invalidated by reason of that declaration”.

Also, “Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President”.

Source: Indian Express, 7/07/22

Remember how the Constitution was brought into being

 

G. N. Devy writes: Tribal communities, workers, peasants, students and the common people braved imprisonment or bullets and fought for the dream of a freedom that would ensure justice and equality

In 1922, a 30-year-old English poet published a long poem, a modern-day epic by common consent. A century later, T S Eliot’s The Waste Land resonates in India, not because of its prophecy or satire, but because of a curious tale it picked up from the Brihad Aranyaka. The Aranyaka, the earliest among the Upanishads, is a treasure trove of mythical stories, one of which appears in the fifth section of The Waste Land, titled ‘What the Thunder Said.’

This is how it goes: After Prajapati, the creator, had made beings and things, he danced in a frenzy, shouting, “da, da, da…” He then assembled his progeny — the devas, danavas and manavas — and asked if they had understood what he said. The devas said “da” is damyata: “learn self-control”; the manavas thought, he had said datta: “learn to overcome greed”; the danavas said it was dayadhvam: “learn to forgive”. Prajapati laughed enigmatically and said, “Well, you seem to have understood, perhaps.”

Without forgetting that this is a myth and not history, I have often wondered if there has been a moment in India’s history when the praja danced in ecstasy, as did Prajapati, for having created what had to be created. I like to believe that November 26, 1949, was that moment – we, the people, adopted, enacted and gave unto ourselves the Constitution, which gave to every Indian a hope that no past era had provided. What diverse responses does it evoke now?

Remembering the day, the constitutional head of India’s judiciary said that the “citizenry of independent India” has breathed life into “what might otherwise have been just another bare document”. Many freedom fighters, such as Gandhi, Ambedkar, Nehru, Lajpat Rai, Patel and Alladi Krishnaswamy Iyer, he reminded the nation, were lawyers. His appreciation of “litigants, judges, law-makers and lawyers” reminded the country that it is the people who matter above all. The response to Samvidhan Divas by the principal opposition party was to remind the Prime Minister that the institutions envisioned by the Constitution have been rendered dysfunctional during his regime and “the Constitution was being undermined every day”. The thoughts of the Prime Minister on the day revolved round his pet theme of dynastic politics as a threat to democracy, colonial mindset and “misuse of the freedom enshrined in the Constitution” as a hindrance in the country’s development. His irritation towards those he believes to be hindering development was clear in word and tone.

All three paid homage to those who gave up their lives to make India free. Influenced by visuals in films, emotive theatre, stories heard from elders and distorted snippets coming through social media, the nation’s memory of the freedom struggle is quite truncated. Who remembers today, for instance, the names of the thousands who plunged into the Quit India and Civil Disobedience movements, faced the gallows, were shot by the colonial police or rotted in jails? Who remembers that tribe and caste fought British rule in villages and cities, from the Santhal uprising in the 1850s right till independence in 1947?

One of those many struggles for India’s freedom was the Battle of Aberdeen, a violent clash between the native Adivasi population of the Andaman islands and the British and the convicts deported to the Penal Colony in the Andaman islands after 1857. Anthropologist Vishvajit Pandya tells us that in April 1859, a batch of Indian prisoners had escaped the Penal Settlement and wanted to hide in the habitat of the Adivasis. All but one of the convicts were killed, as they had been clearing the forest for creating British settlements. A month later, in May 1859, the Adivasis decided to attack the British establishment; but Dudhnath Tiwari, convict no. 276, who they had not killed, betrayed them and reported the plot to the British. As a result, 1,500 tribal men faced the bullets fired from the navy schooner Charlotte. Why had the convicts attempted an escape? In the previous year, in a single day, on May 18, 1958, scores of prisoners had been hanged, 26 of them deported from the Bombay Presidency alone and most in their early twenties. One finds in the record of martyrs documented by the ICHR that from among those who were deported to the Andamans from the erstwhile Bombay Presidency, a total of 37 were hanged. They belonged to all castes and religions. Of them, 14 were Muslims.

Not just in the events of the 1857 resistance to the British rule, but throughout the long history of the freedom struggle, women and men from all castes, communities, religions and regions risked their lives to create a free and forward-looking India. Records show that some esoteric groups did not participate in the freedom struggle, while some individuals submitted mercy petitions and some became informants for the British. However, tribal communities, workers, peasants, students and the common people braved imprisonment or bullets and fought for the dream of a freedom that would ensure justice and equality. The Constitution was and remains the culmination of that struggle.

Returning to the Aranyaka myth, one agrees with the CJI that the people have kept the Constitution alive, despite the “clean chits” to architects of riots and FIRs against victims of atrocities. One agrees with opposition parties that democratic institutions have crumbled; outside as well inside the political parties. Yes, the Prime Minister was right in pointing to “family-centric” action as a hindrance to development. Indeed, catering to only a few corporate families has caused a grave economic crisis for the rest of India.

One wonders if, like the mythical Prajapati, the praja could laugh, for it knows that “once the Constitution” is no guarantee of “always the Constitution”. Surely, it is watching through millions of eyes.

Not just in the events of the 1857 resistance to the British rule, but throughout the long history of the freedom struggle, women and men from all castes, communities, religions and regions risked their lives to create a free and forward-looking India. Records show that some esoteric groups did not participate in the freedom struggle, while some individuals submitted mercy petitions and some became informants for the British. However, tribal communities, workers, peasants, students and the common people braved imprisonment or bullets and fought for the dream of a freedom that would ensure justice and equality. The Constitution was and remains the culmination of that struggle.

Returning to the Aranyaka myth, one agrees with the CJI that the people have kept the Constitution alive, despite the “clean chits” to architects of riots and FIRs against victims of atrocities. One agrees with opposition parties that democratic institutions have crumbled; outside as well inside the political parties. Yes, the Prime Minister was right in pointing to “family-centric” action as a hindrance to development. Indeed, catering to only a few corporate families has caused a grave economic crisis for the rest of India.

One wonders if, like the mythical Prajapati, the praja could laugh, for it knows that “once the Constitution” is no guarantee of “always the Constitution”. Surely, it is watching through millions of eyes.

Written by G. N. Devy

This column first appeared in the print edition on December 3, 2021 under the title ‘For the praja, by the praja’. The writer is a cultural activist

Source: Indian Express, 3/12/21

Reconsider the Seventh Schedule

 A thorough legislative appraisal of the Seventh Schedule to keep pace with changing fiscal priorities is overdue. An expansion of the Concurrent List, for instance, could be considered. But this must be managed democratically and consultatively, while keeping the spirit of federalism intact.

The sharing of financial resources between the Union and states, and inter se, among states, is key in any federal democracy. The Constitution, through Article 280 to 281, provides for a unique mechanism in the form of finance commissions for devolution of resources. The final report of the 15th Finance Commission (2021-26) is now public. The first thing most states, for whom the finance commission award is a lifeline, look to is the devolution formula. This has been maintained at 41%, which is a slight downward adjustment because of the creation of two new Union Territories.

Each successive finance commission has offered unique recommendations. The 10th Finance Commission, for instance, suggested all central taxes be shared with the states. The 14th Finance Commission was a watershed, having increased the share of states in net proceeds of Union tax revenues to 42% from 32%. There are many forward-looking recommendations of the 15th Finance Commission too. But beyond the report, there is one suggestion articulated by its chairman, NK Singh, that stands out. In an interview, he somewhat provocatively asked if the Seventh Schedule has outlived its utility. This newspaper, like Mr Singh, believes it has.

The Seventh Schedule divides subjects under the exclusive domain of the Union, states and common Centre-state jurisdiction, classifying them into the Union, State and Concurrent List. Over time, the Union has transgressed into subjects assigned to states for various reasons, including the fact some of these are national priorities and the Centre has obligations going beyond the Schedule. Subjects such as employment and education, for instance, are under the domain of states. Yet, India has justiciable legislation on employment (the Mahatma Gandhi National Rural Employment Guarantee Scheme) and education (the Right to Education Act), to name a few. The advent of centrally sponsored schemes has necessitated central outlays in other areas, falling within the State List such as agriculture. A thorough legislative appraisal of the Seventh Schedule to keep pace with changing fiscal priorities is overdue. An expansion of the Concurrent List, for instance, could be considered. But this must be managed democratically and consultatively, while keeping the spirit of federalism intact. It must not become an exercise in greater power-accumulation by the Centre, but an exercise in greater burden-sharing. States will be more willing to come on board only if financial obligations are more evenly shouldered.

Source: Hindustan Times, 6/02/21

How the cow came to be debated in Constituent Assembly and why Article 48 was added to Constitution

 On November 16, 1949, as the Indian Constituent Assembly was nearing its end, it made room for the inclusion of a clause in the Directive Principles of State Policy.“That the State shall endeavour to organise agriculture and animal husbandry on modern scientific and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

The clause to prohibit the slaughter of cows in the Constitution has been a matter of intense controversy and debate since the new republic was formed, and more so in recent years. But the inclusion of the clause must be seen in the background of the significance the animal held during the nationalist movement and the shades of majoritarian sentiment carried within it. It also needs to be understood in context of the Partition and the atmosphere of religious animosity that it created.

The cow in the Indian national movement

The cow has had an intriguing presence in the Indian psyche. There are mentions of devotion to cows appearing in Hindu scriptures, even though there is evidence to suggest that complete abstinence from beef eating did not exist in the ancient Indian way of life. In the political life of the Indian subcontinent, the cow has come up on numerous occasions before the nationalist movement of the 20th century.
Although the Indian National Congress, which spearheaded the freedom struggle saw itself as an inclusive party, from the 1890s, it increasingly turned to predominantly Hindu-related imagery as a means to connect with the masses. For instance, the imagery of Hindu deities like Ganesh and Ram, religious epics like the Ramayana and Mahabharata were appropriated to that end. A similar use was made of the holy cow.

“The purity of cow’s milk was likened to the purity and strength of the nation, and cow killing connected to the British consumption of beef was used to portray the British Raj as a regime indifferent to Hindu values,” writes historian Ian Copland in his 2017 research paper titled, ‘Cows, Congress and the Constitution: Jawaharlal Nehru and the making of Article 48’.

Accusations of the British slaughtering cows in large numbers would be spoken about in public gatherings. Historian William Gould, in his book, ‘Hindu nationalism and the language of politics in late colonial India’, notes, “In a city Congress meeting in Agra on June 14, 1930, Hari Narayan and Narayan Lal Bohra described how the British were killing cows in thousands every year.” He adds: “In Kanpur in the first week of September, Raj Narayan estimated that Europeans alone had slaughtered 44,000 cows. In Bhedpur, Etawah, on September 19, one Ram Dutt speaking at a Congress gathering, claimed that the government was responsible for the death of three crore cows.”

To protect the cow was seen as a means of protecting ‘Mother India’. In 1925, Mahatma Gandhi helped establish the first all-India cow protection organisation, the Gorakha Sabha. Cow protection, urged Gandhi, “was one of the important duties enjoined upon Hindus as a part of their religion.”

Consequently, a group within the Congress asked for a legislation for a complete ban on cow slaughter. However, the higher authorities in the party, vary of Muslim alienation, rejected the claim.

But as discussions of cow slaughter gained momentum, there emerged a feeling of alienation among Muslims. As Gould notes, “it heightened awareness of ‘Muslim rights’ in relation to animal slaughter”.

The cow in the Constituent Assembly

In the centuries before Independence itself, the tendency in rhetoric was to combine foreign rule as both British and Muslim and cow slaughter as being a practise among both. But with the Partition of the country, and the creation of Pakistan, the Hindu right both within the Congress and beyond assumed that the newfound Indian nation would be a land based on Hindu ideals including that of safeguarding the cow. Consequently, a public convention in Delhi in early August recommended that the new polity “provide in its constitution for the stoppage of cow killing.”

“Previously, that part of the cow protection movement bent upon resolving the problem through legislation had been loosely coordinated by the Goraksha Sabha; now it gravitated into the orbit of industrialist Seth Ramkrishna Dalmia and his newly minted Govak Nivak Sangh (Anti- cow slaughter league),” writes Copland. He notes further how the first act as president of the league, Dalmia set up headquarters in the Delhi house formerly owned by Muhammad Ali Jinnah and told his supporters that the green flag of Islam had been replaced by the ‘sacred flag of the cow’.

Consequently, the league arranged for a throng of sadhus to carry out regular sit-ins in front of the house of the prime minister-elect Nehru. August 10 was nominated as National Cow Day. Lastly, a rhetoric was built around saving the cow for the economic needs of the country. “To boost the production of food in India, we have to increase the cattle wealth in our country and we can do that only by stopping cow slaughter,” noted Dalmia, as reproduced in Copland’s work.

Dalmia’s petition found many takers. By August it had attracted around 164,000 signatories. Anti-cow killing resolutions were passed by independent organisations like the Ahmedabad Bullion Association and All India Varnashrama Swarajya Sangh. Several state assemblies and municipal bodies served notices of bills to prohibit cow slaughter. Meanwhile, senior leaders within the Congress were flooded with requests to legislate against cow slaughter.

Correspondence between prime minister Jawaharlal Nehru and the newly-elected president of the Constituent Assembly, Rajendra Prasad, is noteworthy here. Nehru confided in Prasad that while he had no problem with protecting cattle, he was deeply worried about the tone the proposal was taking. “India is a composite country. If any such step is taken purely on Hindu sentiment, it means that the governance of India is going to be carried on in a particular way which thus far we have not done,” he wrote to Prasad. Nonetheless, Prasad referred the question to the Constituent Assembly with a request that it be looked as part of its deliberations on ‘Fundamental Rights’.

One of the most vociferous among the cow lobbyists in the Constituent Assembly was Pandit Thakur Dass Bhargava from East Punjab. Arguing from an economic point of view, he asked the question: “How can you improve your health and food position, if you do not produce a full quota of cereals and milk? This amendment is divided into three parts. Firstly, agriculture should be improved on scientific and modern lines. Secondly, the cattle breed should be improved; and thirdly, the cow and other cattle should be protected from slaughter. To grow more food and to improve agriculture and the cattle breed are all inter-dependent and are two sides of the same coin.” Others who supported him included Seth Govind Das, Shibban Lal Saxena, Ram Sahai and Raghu Vira.

R V Dhulekar, on the other hand, made his argument on more religious grounds. “And our Hindu society, or our Indian society, has included the cow in our fold. It is just like our mother. In fact, it is more than our mother. I can declare from this platform that there are thousands of people who will not run at a man to kill that man for their mother or wife or children, but they will run at a man if that man does not want to protect the cow or wants to kill her.”

But the proposal was met with stiff resistance from the chairman of the Drafting Committee B R Ambedkar who informed that it cannot be included as part of Fundamental Rights since ‘rights’ properly applied only to citizens and cows were not citizens. Finally, it was Prasad who came up with a resolution and proposed the needs of the holy cow in the chapter devoted to Directive Principles of State Policy. Thus was born Article 48.

As a consequence of Article 48, several state governments hastened to enact laws prohibiting the killing of cows. At present, 24 out of 29 states in India have laws criminalising cow killing.

Source: Indian Express, 25/01/21