Thursday, July 21, 2016
Governing the Governor
The Supreme Court verdict in the Arunachal case leaves no doubt that the Governor is a mere figurehead
In Greek mythology, it is said that Lycurgus, the ruler of Sparta, elicited a promise from his subjects, assuring him of the immutability of his laws till he returned from an impending journey. To make his laws immutable, Lycurgus never returned. Seven justices of the Indian Supreme Court on a historic day in 1973 christened themselves as modern-day Lycurguses, seeking to create, in India’s constitutional context, an island of immutability, aptly titled the “basic structure”. Its value, much like Lycurgus’s fundamentally just laws, has been established over time. Most recently, the Supreme Court implicitly relied on it andstruck down the unilateral actions of the Governor of Arunachal Pradesh in summoning an Assembly session and sending messages to the Assembly as unconstitutional.
As in most other cases where a facet of the basic structure doctrine has been pressed into service, the ends sought to be achieved in the Arunachal Pradesh judgment were lofty — upholding the rule of law, safeguarding the power of judicial review and circumscribing the role that an unelected Governor could play in determining the future course of State politics. However, in reaching these unarguably desirable results, the judgment contains some troubling reasoning that has potential consequences for the future of government- judiciary relations in India.
The Governor’s discretion
In the lead opinion of Justice J.S. Khehar, three propositions of law are clearly laid down — first, the Governor has no power to unilaterally summon an Assembly session unless the government has, in his view, lost its majority; second, he cannot take steps relating to disqualification of the Speaker; and third, he is barred from unilaterally sending messages to the Assembly on any matter. The underlying justification for each of these is the constitutional role of the Governor as the titular head of the State executive. According to Justice Khehar, the Governor is bound by the “aid and advice” of the elected Council of Ministers as the default rule. While he has the discretion to act on his own in certain matters, those matters must be specified “by or under the Constitution”. Inviting the leader of the majority party to form a government is an example of such a matter since there is no Council on whose aid and advice the Governor can act. On the contrary, calling an Assembly session, dictating its agenda and sending messages to the House are not.
In the lead opinion of Justice J.S. Khehar, three propositions of law are clearly laid down — first, the Governor has no power to unilaterally summon an Assembly session unless the government has, in his view, lost its majority; second, he cannot take steps relating to disqualification of the Speaker; and third, he is barred from unilaterally sending messages to the Assembly on any matter. The underlying justification for each of these is the constitutional role of the Governor as the titular head of the State executive. According to Justice Khehar, the Governor is bound by the “aid and advice” of the elected Council of Ministers as the default rule. While he has the discretion to act on his own in certain matters, those matters must be specified “by or under the Constitution”. Inviting the leader of the majority party to form a government is an example of such a matter since there is no Council on whose aid and advice the Governor can act. On the contrary, calling an Assembly session, dictating its agenda and sending messages to the House are not.
According to Justice Khehar, this understanding concords with the larger scheme of the Constitution pertaining to the role of Governors. Unelected Governors were never envisaged as wielding significant powers relating to State administration. They merely possessed the formal authority of state and could act as a safety valve in case there was a breakdown of constitutional machinery. This view is correct, albeit partially — discretion being vested in Governors was a thorny issue in discussions in the Constituent Assembly. The analogous power of the colonial Governor had created great disaffection leading to a strong sentiment to remove discretion of the Governor altogether.
However, in a seminal speech in the Constituent Assembly on July 15, 1947, Vallabhbhai Patel attempted to strike a balance. While ministerial responsibility would be the fundamental rule, the Governor could exercise his discretion in a few matters which were either widely accepted or necessary in an emergency. It is telling that summoning and dissolving Assemblies was one such matter.
Equally, it would be remiss to not point out that the same scheme of the Constitution never envisaged judicial review to correct any such actions of the Governor. In fact, Article 163 specifically provides that in determining which matters fall within the discretion of the Governor, the Governor’s decision will be final. A literal interpretation of this clause would mean that were there any doubts in the constitutional scheme as to whether a Governor could act on his own accord in relation to a matter or not, such decision would rest with the Governor as the highest constitutional authority in a State. It would not be the domain of the courts.
However, for the Supreme Court, an appeal to the scheme of the Constitution and the basic structure doctrine was sufficient to deny the Governor such discretion. This view is founded on the baseline assumption that judicial review is all-pervasive, irrespective of what the Constitution actually says. There is little doubt that such creativity in interpretation was crucial in this case to strike down the actions of the Governor as unconstitutional, which was unquestionably the right result. However, the bluntness of the tool, combined with the blitheness with which judicial review, a basic feature, was used as an interpretive tool contrary to its original intent, means that larger questions about checks and balances in the constitutional framework must be confronted.
Gubernatorial appointments
Any reference to theoretical questions pertaining to checks and balances must necessarily be seen in light of the reality of politicised gubernatorial appointments. There is a marked mismatch between the understanding of the Constitution of the Governor as the dignified head of the State executive and the regular turnover of Governors depending on the party in power at the Centre. This mismatch earlier manifested itself through regular invocations of President’s Rule in States; now that invoking such rule has become onerous owing to strict scrutiny by the Supreme Court, in Arunachal Pradesh the Governor attempted a more direct interference.
Any reference to theoretical questions pertaining to checks and balances must necessarily be seen in light of the reality of politicised gubernatorial appointments. There is a marked mismatch between the understanding of the Constitution of the Governor as the dignified head of the State executive and the regular turnover of Governors depending on the party in power at the Centre. This mismatch earlier manifested itself through regular invocations of President’s Rule in States; now that invoking such rule has become onerous owing to strict scrutiny by the Supreme Court, in Arunachal Pradesh the Governor attempted a more direct interference.
The court’s response, acutely cognisant of this history, firmly shuts the door on all such actions. It circumscribes the role of the Governor to an extent that no doubts remain that he is a mere figurehead at the apex of the State administration. While political reality demanded such an interpretation, its definitiveness means that what is lost in the process is any possibility of the Governor acting as a bulwark against abuse of power by an elected State government. The phenomenon of Speakers acting politically, not allowing a no-confidence motion to be tabled and minority governments not summoning the Assembly are not uncommon. In such situations, the Constitution envisaged a restorative power being responsibly exercised by the office of the Governor. However, the propensity of successive governments to hijack such powers for partisan ends trumped this check and balance function. The Supreme Court, by this judgment, has provided its imprimatur against any such role for the Governor in the future.
Changing nature of checks and balances
In substitution, the court has itself taken on the mantle of checking constitutional infractions by a government whenever and wherever they might occur. There are two simultaneous trends at play here — first, a circumscribing of the powers of the legislature and executive based on a careful reading of the Constitution; second, a creeping extension of judicial power based on a nebulous understanding of the basic structure coupled with an intrinsic belief about the court’s own good intentions. This interplay is not unique to this case. Variants of it are clearly visible in three of Justice Khehar’s recent and seminal constitutional law opinions — striking down the National Tax Tribunal Act for being excessively executive-centric; declaring the National Judicial Appointments Commission unconstitutional for taking away judicial primacy in appointment of judges; widening powers of contempt of court by keeping Subrata Roy incarcerated for any length of time that the court feels is necessary to secure compliance with its orders. The rigour that justifies his views on why the Constitution ought to be interpreted in a manner that keeps the executive and legislature in check is in sharp contrast to the assertions that justify judicial expansionism.
In substitution, the court has itself taken on the mantle of checking constitutional infractions by a government whenever and wherever they might occur. There are two simultaneous trends at play here — first, a circumscribing of the powers of the legislature and executive based on a careful reading of the Constitution; second, a creeping extension of judicial power based on a nebulous understanding of the basic structure coupled with an intrinsic belief about the court’s own good intentions. This interplay is not unique to this case. Variants of it are clearly visible in three of Justice Khehar’s recent and seminal constitutional law opinions — striking down the National Tax Tribunal Act for being excessively executive-centric; declaring the National Judicial Appointments Commission unconstitutional for taking away judicial primacy in appointment of judges; widening powers of contempt of court by keeping Subrata Roy incarcerated for any length of time that the court feels is necessary to secure compliance with its orders. The rigour that justifies his views on why the Constitution ought to be interpreted in a manner that keeps the executive and legislature in check is in sharp contrast to the assertions that justify judicial expansionism.
Consequences beyond the case
This dissonant understanding of the Constitution has consequences far beyond the facts of this case. First, it reinforces the truly independent nature of the Indian higher judiciary. That the court can so boldly speak truth to power, unseating Chief Ministers and turning back the clock, is testament to the respect accorded to it by the people and governments. Second, it causes a subtle shift in perception of the court from an apolitical institution to an intensely political one. This perception has little to do with the rightness or wrongness of its judgment, but is rather an inevitable by-product of a court that takes its functions of checking and balancing political organs of state very seriously. Third, it adds grist to the clamorous mill demanding greater and more meaningful accountability for judges who exercise such immense power in India’s constitutional framework. With judges using both the basic structure doctrine to strike down constitutional amendments and its facets as tools for interpretation of the Constitution, greater public knowledge on diverse aspects pertaining to their appointments, performance and functioning are going to be continually sought.
This dissonant understanding of the Constitution has consequences far beyond the facts of this case. First, it reinforces the truly independent nature of the Indian higher judiciary. That the court can so boldly speak truth to power, unseating Chief Ministers and turning back the clock, is testament to the respect accorded to it by the people and governments. Second, it causes a subtle shift in perception of the court from an apolitical institution to an intensely political one. This perception has little to do with the rightness or wrongness of its judgment, but is rather an inevitable by-product of a court that takes its functions of checking and balancing political organs of state very seriously. Third, it adds grist to the clamorous mill demanding greater and more meaningful accountability for judges who exercise such immense power in India’s constitutional framework. With judges using both the basic structure doctrine to strike down constitutional amendments and its facets as tools for interpretation of the Constitution, greater public knowledge on diverse aspects pertaining to their appointments, performance and functioning are going to be continually sought.
Taken together, these tectonic shifts pertaining to government-judiciary relations might ultimately be contested at a fundamental level, questioning the legitimacy of the basic structure doctrine that lies at the heart of the Supreme Court’s current expansionist avatar. If the court continues unabated in this avatar, in a modern-day retelling of Lycurgus’s myth, Lycurgus himself might attempt to return, giving his hitherto immutable laws a timely burial.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy, a Delhi-based legal think tank. Views are personal.
Keywords: Arunachal Pradesh government, Governor, government-judiciary relations, Indian Constitution
Source: The Hindu, 21-07-2016
Experience Near-death Without Trauma
Sant Rajinder Singh
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The writings of saints and mystics through the ages provide nume rous references to regions beyond this world. They wrote of their spiritual journeys and described the incredible beauty , peace, love, and light found there. In the current scientific era, we are taught to verify information through our own experience.Other dimensions
The first question that arises is: Where are the regions of the beyond?
According to sages and those who have made this journey , mystical regions beyond are not in outer space; they are within us.
In scriptures, each religion has its own descriptions recorded of regions beyond this world. Although books on near-death experiences (NDEs) have been published only since the 1970s, people have been experiencing this phenomenon for centuries. A typical NDE involves someone undergoing clinical death due to an accident or illness. They find themselves rushing through a tunnel and emerging at the end of the tunnel into a world of light. During this time there may be a life review that passes before their eyes. Some meet a Being of Light who fills them with a love that is so fulfilling it is unlike anything they experienced on earth. Most say that they did not want to come back from that region. Since it was not their time to leave the body for good, they were suddenly sucked back into the body .
Personal experience
In his book, `Transformed by the Light', Melvin Morse, who visited me at the mission's centre in Naperville, US, spoke about the transformation people experienced when they had an NDE. These reports echo what teachers of Sant Mat or Surat Shabd Yoga have taught all along, and what we continue to teach in our mission. They teach people to experience the numerous regions beyond this world for themselves.
Once a disciple asked how he could find the spiritual realms within.
The saint responded by digging up a plant and transplanting it, saying, “My son, it is very simple. Uproot the plant from here, and replant it there.“
The perplexed student asked, “How did your replanting relate to my question about finding spiritual truth?“ The teacher explained that finding spiritual knowledge was simply a matter of taking our attention from one place and focusing it in another place.
This is what we do in meditation. We simply withdraw our attention from the world outside and focus it at a point within where we can experience spiritual regions beyond. We do not need a traumatic near-death experience.
Meditation is key
In Jyoti Meditation you can sit in a relaxed position for the longest possible time. Close your eyes and concentrate your attention at the point between and behind the two eyebrows, known as the third eye or single eye. To keep the mind still we silently repeat any name of God with which we feel comfortable.
The ultimate goal of meditation is to rise into the `Light' for a visit to the lands beyond. We can travel to inner regions on the current of Light and Sound that we connect with at the third eye. A spiritual teacher can help us connect with this Light and Sound, which is already within us. Meditation is open to all. Light and Sound is there for all. Through meditation, we glimpse into the realms beyond.
The first question that arises is: Where are the regions of the beyond?
According to sages and those who have made this journey , mystical regions beyond are not in outer space; they are within us.
In scriptures, each religion has its own descriptions recorded of regions beyond this world. Although books on near-death experiences (NDEs) have been published only since the 1970s, people have been experiencing this phenomenon for centuries. A typical NDE involves someone undergoing clinical death due to an accident or illness. They find themselves rushing through a tunnel and emerging at the end of the tunnel into a world of light. During this time there may be a life review that passes before their eyes. Some meet a Being of Light who fills them with a love that is so fulfilling it is unlike anything they experienced on earth. Most say that they did not want to come back from that region. Since it was not their time to leave the body for good, they were suddenly sucked back into the body .
Personal experience
In his book, `Transformed by the Light', Melvin Morse, who visited me at the mission's centre in Naperville, US, spoke about the transformation people experienced when they had an NDE. These reports echo what teachers of Sant Mat or Surat Shabd Yoga have taught all along, and what we continue to teach in our mission. They teach people to experience the numerous regions beyond this world for themselves.
Once a disciple asked how he could find the spiritual realms within.
The saint responded by digging up a plant and transplanting it, saying, “My son, it is very simple. Uproot the plant from here, and replant it there.“
The perplexed student asked, “How did your replanting relate to my question about finding spiritual truth?“ The teacher explained that finding spiritual knowledge was simply a matter of taking our attention from one place and focusing it in another place.
This is what we do in meditation. We simply withdraw our attention from the world outside and focus it at a point within where we can experience spiritual regions beyond. We do not need a traumatic near-death experience.
Meditation is key
In Jyoti Meditation you can sit in a relaxed position for the longest possible time. Close your eyes and concentrate your attention at the point between and behind the two eyebrows, known as the third eye or single eye. To keep the mind still we silently repeat any name of God with which we feel comfortable.
The ultimate goal of meditation is to rise into the `Light' for a visit to the lands beyond. We can travel to inner regions on the current of Light and Sound that we connect with at the third eye. A spiritual teacher can help us connect with this Light and Sound, which is already within us. Meditation is open to all. Light and Sound is there for all. Through meditation, we glimpse into the realms beyond.
How reservations help disadvantaged-caste students get higher education
As many as 26% male and 35% female students from India’s most disadvantaged castes and tribes in 245 engineering colleges would not be there without reservation, according to a new study that says affirmative action policy in higher education works largely as intended.
However, reservations do place those who do not qualify for affirmative action at a disadvantage, said the study of 53,374 scheduled caste (SC), scheduled tribe (ST), other backward caste (OBC) and general students by researchers from the US’ Carnegie Mellon University, published in the American Economic Review.
In this, the first part of a three-part IndiaSpend series exploring disadvantaged Indian communities in higher education, a review of education data confirmed a growing tide of SC/ST students in higher education, but their numbers still lag their proportion in the general population.
The second part will explain why the government must consider restructuring OBC reservation to benefit OBC students from deprived backgrounds, as the Supreme Court has advised, with their proportion in higher-education institutes nearing their proportion in the general population. The third part will explain how Muslims lag every disadvantaged group in higher education, even SCs and STs.
Naveen Gurappu’s story: From diffidence to confidence
Naveen Gurappu, 25, an electrical engineer and doctoral student at the Indian Institute of Technology (IIT), Bombay, is an embodiment of India’s 34-year-old system of reservation for the most disadvantaged groups.
“I would never have come so far if it had not been for the scheduled caste quota and my dad,” said Gurappu, a native of Hyderabad, son of a bank clerk who himself got his job through reservation.
“My dad enrolled me in St Martin’s High School in Hyderabad, a good school, because he wanted me to study well,” said Gurappu, from a scheduled caste called the Malas. “SBI (State Bank of India) pitched in with a yearly fellowship of Rs 500 for stationary, etc. We could not afford extra tuition or the internet at home, even though I badly needed help. Dad paid for my college, coaching and books, he treated me to my first movie—I was in class 11.” The family took a bank loan, which they are repaying, to finance Gurappu’s studies at IIT, which charges SC/ST students about Rs 60,000 per annum for the engineering programme and PhD.
Naveen Gurappu, 25, electrical engineer and doctoral student at IIT Bombay, would not have made it to the Indian Institute of Technology, Gandhinagar, for a graduate engineering degree had it not been for affirmative action. As many as 26% male and 35% female scheduled caste, scheduled tribe and other backward caste students in 245 engineering colleges benefited from reservation in higher education, according to a new study of 53,374 students. (Special arrangement)
In his first year at IIT, Gurappu struggled to grasp lessons, unlike his upper-caste peers. “Still, I was better off than other disadvantaged caste students because I came from a city,” he said.
Reservation helps and motivates the disadvantaged
Affirmative action spurred students from disadvantaged castes–who still lagged upper castes–to perform better in college than in school, said the Carnegie Mellon study which compared the first-year college scores of 42,914 students with their high-school scores.
Gurappu–who struggled to cope initially at IIT Gandhinagar, where he pursued a graduate degree–agreed with that assessment. “In time, I adjusted to the IIT system and standards, and even caught up with toppers in some subjects,” he said. “With the right mindset and opportunity, any socially disadvantaged student can excel in higher education.”
Disadvantaged-caste students were more likely to choose competitive majors, such as electronics, communication and computer science, than other students.
Reservation is an equaliser, but it does not get enough SC/ST/OBC students into higher education.
“Even with the attendance gains from affirmative action, the most disadvantaged castes still attend in smaller proportions than their population shares,” Dennis Epple, co-author of the American Economic Review study and Thomas Lord University Professor of Economics at the Tepper School of Business, Carnegie Mellon University, told IndiaSpend.
“Our work also indicates why affirmative action policies generate debate,” said Epple. “We find that improved educational outcomes for disadvantaged students come at a cost to those who do not receive affirmative action.”
The bottom line: SCs/STs/OBCs benefit from reservation in higher education, but affirmative action should be carefully implemented, periodically reviewed and adjusted to deliver the best outcomes.
IndiaSpend dissected higher-education enrolment data to determine what reservation is still justified in India.
Reservation and higher education expansion boost SC, ST enrolments, but not enough
India introduced 15% and 7.5% reservations for SC and ST candidates respectively in government-aided educational institutions in 1982. Some states tweaked those percentages to factor in local demographics, which the Constitution allows. So in Tamil Nadu, 18% of higher-education is reserved for SCs, 1% for STs. In some central universities in the tribal-dominated northeast, 60% of seats are reserved for ST students.
Between 2000 and 2014, the Gross Enrolment Rate (GER) of SCs–a measure of the percentage of actual enrolments in higher education, regardless of age, in a given academic year, to the 18- to 23-year-old population eligible for higher education in that year–more than doubled while that of STs doubled.
Reservation and higher education expansion boost SC, ST enrolments, but not enough
India introduced 15% and 7.5% reservations for SC and ST candidates respectively in government-aided educational institutions in 1982. Some states tweaked those percentages to factor in local demographics, which the Constitution allows. So in Tamil Nadu, 18% of higher-education is reserved for SCs, 1% for STs. In some central universities in the tribal-dominated northeast, 60% of seats are reserved for ST students.
Between 2000 and 2014, the Gross Enrolment Rate (GER) of SCs–a measure of the percentage of actual enrolments in higher education, regardless of age, in a given academic year, to the 18- to 23-year-old population eligible for higher education in that year–more than doubled while that of STs doubled.
Reservations have had a domino effect, spurring new generations to educate themselves.
“Reservations in past decades have increased the numbers of SC/ST families with highly-educated members, who can encourage–and provide support for–younger family members to continue their education,” said professor emeritus of economics at the University of Michigan, Thomas E Weisskopf, who has argued in favour of reservations for marginalised Indian social groups in higher education.
If parity existed between the share of SCs and STs in the general population and participation in higher education, SCs would occupy a third more seats than they do now, while STs would occupy close to double the seats.
5 ways to increase SC, ST higher-education enrolments
1. Create more infrastructure: Investing in higher education by creating more colleges and universities would help drive SC and ST enrolments, said Sachidanand Sinha of the Centre for the Study of Regional Development, Jawaharlal Nehru University.
SC and ST higher-education enrolments were higher in districts with a higher College-Population Index (C-PI), a measure of the number of colleges in a district for every 100,000 people aged 18 to 23, according to Identification of Educationally Backward Districts, a 2007 study Sinha led for the University Grants Commission.
“Since disadvantaged youth tend to gravitate to government-run and missionary/CSR (corporate social responsibility)-driven institutes, India needs more of those,” he said.
Although the number of colleges and universities has expanded 248% since 2000, from11,146 to 38,813, most new institutes are privately run, which means they are not obliged to reserve seats for SC and ST candidates.
2. Extend affirmative action to private-sector institutions: To drive SC and ST enrolments in private sector institutes, they could be asked to reserve seats for applicants from economically disadvantaged families and offer scholarships, said Bhushan Patwardhan, former vice chancellor, Symbiosis International University, and professor at the Interdisciplinary School of Health Sciences, Savitribai Phule University in Pune.
3. Support students at the intermediate level: “ST and SC candidates need more support at the intermediate level. Scholarships exist for study up to class X and for graduate study but financial assistance for the intermediary expensive preparatory time is missing,” said Gurrapu.
Post-matriculation scholarships start after higher-education admission, pointed out Yagati Chinna Rao, chairperson of the Centre for the Study of Discrimination and Exclusion, School of Social Sciences, Jawaharlal Nehru University, New Delhi. “Between school-leaving and admission, students are on their own. Accommodation expenses, travel to a preparatory centre, etc. fall on the family, which most can ill afford. This is when most dalit children who manage to complete school drop out.”
4. Counsel students about opportunities: Most children from SC and ST families are unaware of many higher-education opportunities, especially where there is no one who has acquired a graduate degree or more, said Rao.
So, students need counselling to understand it benefits them to study instead of working as soon as possible and to learn about opportunities, said Gurrapu. “Students in cities hear about competitive exams very early, but those from rural backgrounds often get to know about competitive exams only when they are in +2 (10th and 11th standard, or pre-university), when it is too late to start preparing,” he said.
5. Encourage CSR initiatives in education for disadvantaged students: “Primary education for all is an objective of many NGOs, higher education for the disadvantaged is not, whereas the latter would help boost primary education too when its beneficiaries raise the next generation,” said Gurappu.
Certainly, education begets education, said Sheldon Danziger of the University of Michigan and Jane Waldfogel of the London School of Economics in Securing the Future: Investing in Children from Birth to College.
“Those who complete more education initially are more likely to seek additional education and additional training,” wrote Danziger and Waldfogel. “Education begins at home; the educational level of a child’s parents is a primary determinant of how much education that child will get and how well she and he will do in school.”
This is the first of a three-part series. Next: 1931 Data Muddies Issue Of Backward-Caste Higher-Education Quotas
(Bahri is a freelance writer and editor based in Mount Abu, Rajasthan.)
IndiaSpend welcomes feedback. Please write to respond@indiaspend.org. They reserve the right to edit responses for language and grammar.
Source: Hindustan Times, 20-07-2016
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