Legitimacy of the basic structure

The doctrine may be derived from the abstract. But it exists within the Constitution itself

It has now been more than 45 years since the Supreme Court ruled inKesavananda Bharati v. State of Kerala that Parliament’s power to amend the Constitution was not unlimited, that the Constitution’s basic structure was infrangible. But as entrenched as this doctrine might now be, it remains, to some, a source of endless antipathy. There have already been grumblings over the rule’s legitimacy in certain quarters in response to challenges made to the recently introduced 103rd Constitutional Amendment, which provides for reservations based on economic criteria in government jobs and education.

Unwarranted censure

The common criticism is that the doctrine has no basis in the Constitution’s language. The phrase “basic structure”, it’s argued, finds no mention anywhere in the Constitution. What’s more, beyond its textual illegitimacy, its detractors also believe the doctrine accords the judiciary a power to impose its philosophy over a democratically formed government, resulting in something akin to what Union Minister Arun Jaitley once termed as a “tyranny of the unelected”.

Unquestionably, some of this censure is a result of the Supreme Court’s occasionally muddled interpretation of what the Constitution’s basic structure might be. But to reject the doctrine altogether because the judiciary sometimes botches its use is to throw the baby out with the bathwater. For not only is the basic structure canon legally legitimate, in that it is deeply rooted in the Constitution’s text and history, but it also possesses substantial moral value, in that it strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals.

Ever since the Constitution was first amended in 1951, the true extent of Parliament’s power to amend the document has been acutely contested. But the dangers inherent in granting untrammelled power to the legislature were perhaps best brought out in a lecture delivered by a German professor, Dietrich Conrad. His talk “Implied Limitations of the Amending Power”, delivered in February 1965 to the law department of the Banaras Hindu University, came at an especially fraught time. Only months earlier Parliament had introduced the contentious 17th Constitutional Amendment. Through this, among other things, a number of land reform legislations had been placed into the Constitution’s Ninth Schedule. This meant that those laws, even when discriminatory, were immunised from challenge.

But it wasn’t the merit of the amendment that troubled Conrad. He was concerned with the suggestion that Parliament’s power to alter the Constitution was plenary. Influenced by the theoretical scholarship of the jurist Carl Schmitt, Conrad believed that even if a legislature were bestowed with the widest of powers to amend the Constitution, its authority was always subject to a set of inherent constraints. Parliament, he contended, was, after all, a creature of the Constitution. It could not, therefore, make changes that had the effect of overthrowing or obliterating the Constitution itself.

As A.G. Noorani has pointed out, Conrad was affected by his own country’s history. In Germany, the virulent end brought to the Weimar Republic by Nazism had meant that when the country adopted its Basic Law in 1949, it quite explicitly placed checks on the legislature’s powers. This included a bar on lawmakers from amending those provisions of the Basic Law that concerned the country’s federal structure, that made human rights inviolable and that established constitutional principles such as the state’s democratic and social order.

Questions to ponder

In his lecture, Conrad said India hadn’t yet been confronted with any extreme constitutional amendment. But jurists, he warned, ought to be mindful of the potential consequences inherent in granting Parliament boundless power to change the Constitution. How might we react, he wondered, if the legislature were to amend Article 1, for example, by dividing India into two. “Could a constitutional amendment,” he asked, “abolish Article 21,” removing the guarantee of a right to life? Or could Parliament use its power “to abolish the Constitution and reintroduce… the rule of a Moghul emperor or of the Crown of England?”

Although it was delivered to a limited audience, M.K. Nambyar, who was to soon lead arguments in the Supreme Court against the 17th amendment in Golaknath’s case, was alerted to Conrad’s urgings. Devoid of any direct precedent from other Commonwealth nations, where an amendment had been subject to the rigours of judicial review, Nambyar thought the German experience carried with it a set of important lessons. Were Parliament’s powers considered infinite, he argued, the parliamentary executive can be removed, fundamental rights can be abrogated, and, in effect, what is a sovereign democratic republic can be converted into a totalitarian regime.

Interpreting ‘amendment’

The court, in Golaknath , didn’t’ quite feel the need to go this far. But, ultimately, just four years later, in Kesavananda Bharati , it was this formulation that shaped Justice H.R. Khanna’s legendary, controlling opinion. While the judge conceded that it wasn’t possible to subscribe to everything in Conrad’s arguments, this much, he said, was true: “Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its Constitutional authority.” Yet, the limitation, wrote Justice Khanna, wasn’t as much implicit from a reading of the Constitution as a whole as it was evident from the very meaning of the word “amendment”. According to him, what could emerge out of an amendment was only an altered form of the existing Constitution and not an altogether new and radical Constitution.

This interpretation, as Sudhir Krishnaswamy has shown, in some depth, in his book, Democracy and Constitutionalism in India , is compelling for at least two reasons. First, it represents a careful reading of the text of Article 368, and, second, it delivers an attractive understanding of the moral principles that anchor the Constitution. Article 368 grants Parliament the power to amend the Constitution, making it clear that on the exercise of that power “the Constitution shall stand amended”. Therefore, if what has to remain after an amendment is “the Constitution”, naturally a change made under Article 368 cannot create a new constitution. Such a construal is also supported by the literal meaning of the word “amendment”, which is defined as “a minor change or addition designed to improve a text”. Hence, for an amendment to be valid, the constitution that remains standing after such a change must be the Constitution of India; it must continue to possess, in its essence, those features that were foundational to it even at its conception.

Now, consider Conrad’s extreme example: were an amendment to be introduced relinquishing control over India to a foreign power, would it not result in the creation of a constitution that is no longer the Constitution of India? Would not such an amendment strike at the root of the Constitution’s Preamble, which, in its original form, established India as a sovereign democratic republic? On any reasonable analysis it ought to, therefore, be clear that the basic structure doctrine is not only grounded in the Constitution’s text and history, but that it also performs an important democratic role in ensuring that majoritarian governments do not destroy the Constitution’s essential character.

We must remember that constitutions are not like ordinary laws. Interpreting one is always likely to be an exercise fraught with controversy. But such is the nature of our political design that the court, as an independent body, is tasked with the role of acting as the Constitution’s final interpreter, with a view to translating, as Justice Robert H. Jackson of the U.S. Supreme Court once wrote, abstract principles into “concrete constitutional commands”. It may well be the case that the basic structure doctrine is derived from the abstract. But that scarcely means it doesn’t exist within the Constitution.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

Source: The Hindu, 4/02/2019

Oh So ‘Backward’

Metropolitan notions of progress are challenged by the lifestyle of a Naga tribe

Mon. The name will not ring a bell for most of us. The land of the last legendary head-hunters, this picturesque district of Nagaland, running along the Myanmar border, is one of the remotest in the country. Mon is also typically considered one of the most “backward” districts. In my one year of work and stay at Mon, I, however, have often felt compelled to contemplate on what it really means to be backward. Having grown up in one of the most prosperous and well-administered parts of India — in and around Chandigarh — and having lived in two megalopolises — Boston and London — I thought I knew what it means to not be backward. The people of Mon, belonging to the Konyak Naga tribe, continuously challenge my hitherto held clichéd notions of advancement and backwardness. I share the story of one such subversion.

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One of the grandest annual celebrations in Mon is the “Lao-Ong Mo”, a post-harvest festival of the Konyaks. I too was invited to express gratitude to the divine spirits for the bountiful harvest by way of praying, singing, dancing and feasting. It was a spectacular affair, attended, inter alia, by a posse of political leaders, senior government officials, heads of village councils and local unions. The feast was a gastronomical delight — tables groaning under the weight of an endless array of dishes, prepared from the freshly harvested produce. But more than the colourful cuisine, it was the unique dining experience that struck a real chord. As I walked into the dining hall, a bearer, decked in her traditional finery, handed me a beautifully woven bamboo food tray. The tray was shaped quite like a North Indian thaal/thaali, sturdy yet light to hold. It was lined with fresh green leaves. After I had finished eating, another equally charming bearer swiftly cleared away my tray. I followed my gentle helper, out of curiosity, to the room meant for disposal. I saw her upturn the tray into a large waste bin, also made of bamboo. The leaves had been lined on the trays with such skill that they fell into the bin as a neat little packet with all the waste food secured inside, without any of it soiling the tray, and without the cleaner having to touch any leftovers. The trays were being collected for sunning and reuse.

As per the Konyak tradition, an anti-oxidant rich black tea, called “phika” is served after food. I was again thrilled to find my steaming phika cha poured into a disposable glass, carved out of bamboo stem. Such a seamlessly biodegradable pattern of food consumption was a first-of-its-kind experience. I was also one of the luckier guests, who received a gift hamper of local produce. Recently harvested millets, spices and vegetables were meticulously packed in firm packets made of palm leaf, and all the packets were tucked inside a beautiful sturdy bamboo basket. Not a speck of plastic was used in the otherwise usual guzzlers — feasting and packaging.

Generally, public events of such scale, both in India and abroad, would generate an abominable quantity of non-biodegradable waste. Material prosperity, associated with high-end retail and luxurious lifestyles, but built on toxic and unsustainable consumption patterns, may not quite be a sign of advancement. For instance, Starbucks’ reported consumption of plastic, of which the straws alone annually contribute 2,000 tonnes of plastic to the world’s oceans, is exacerbating global menaces like the Great Pacific Garbage Patch and threatening the marine ecosystem.

At the end of the festival, I scanned the vast ground and the massive dining hall and found not a trace of refuse. I stood there for a while, immensely satisfied to have had my stereotypes about “backwardness” take a beating, yet again. It was a powerful reminder that true advancement must encompass the good sense to clean up after ourselves and the thoughtfulness to adopt consumption patterns generating as little waste as possible.

My experiences in Mon regularly reveal to me that there is more to every story and so much to learn in places one might little expect. This new year, let’s embrace advancement by looking beyond the constructed narrative, shrugging off generalisations, and learning from one another’s transformative ideas and cultural wisdom, even those in faraway corners.The Father of the Nation would have been proud of Mon. I certainly am.

Source: Indian Express, 4/02/2019

To protect tigers, India needs more better-equipped forest personnel

India is currently the most dangerous country in the world for forest rangers. In 2017, 29 rangers were killed on duty in India; the Democratic Republic of Congo (17) and Thailand (8) made for a distant second and third, says a report of the International Ranger Federation. On January 27, unidentified poachers with weapons hacked to death two guards in the Valmiki Tiger Reserve in Bihar.

At a time when there are almost daily reports of man-animal conflicts across the country, the Indian government’s pledge to protect tiger habitats and tiger corridors is a heartening piece of news. The second part of the promise is of utmost important because, while India’s total tiger population went up from 1,411 in 2006 to 1,706 in 2010 and 2,226 in 2014, the country recorded a 12.6% decline in tiger occupancy in connecting tiger habitats outside tiger reserves between 2006 and 2010, the latest period for which this data is available. This promise to protect tiger habitats and corridors was published on Monday in the fourth edition of the Global Tiger Action Plan.

Unfortunately, the action plan didn’t release data on the decline in the tiger population outside protected areas for 2014. The 2018 tiger census estimations, likely to be released on March 31, may see an increase in overall tiger numbers but may not offer any trends on their numbers in corridors (outside the protected areas) because it follows a different methodology.

Saying that India has changed its approach to tiger conservation to focus on the corridors, The Global Tiger Action Plan adds that now the country prioritises “source-sink dynamics” (how variation in habitat quality may affect the population of tigers) by restoring habitat connectivity. This includes providing incentives to local people for conserving forests along tiger corridors and providing subsidised LPG connections to people to reduce dependence on timber from the forest.

Along with these steps, the Indian State needs to invest heavily in other areas if it is keen to protect tigers, no matter where they are: increase recruitment; improve ground-level infrastructure in forests (vehicles for patrolling, staff quarters with basic facilities); and provide better training and arming of forest guards, the first line of defence against poaching and illegal public intrusion, who at present, operate with outdated guns and little training.

India is currently the most dangerous country in the world for forest rangers. In 2017, 29 rangers were killed on duty in India; the Democratic Republic of Congo (17) and Thailand (8) made for a distant second and third, says a report of the International Ranger Federation. On January 27, unidentified poachers with weapons hacked to death two guards in the Valmiki Tiger Reserve in Bihar.

In January, in an unprecedented incident, more than 50 forest and police personnel were injured when a mob of relocated villagers brutally attacked them at the Melghat Tiger Reserve in Maharashtra.

To save tigers outside reserve areas — a hugely challenging task — the department needs better tiger tracking systems and specially trained teams to keep an eye on big cats moving outside the protected areas.

Source: Hindustan Times, 3/02/2019

The Teen Age Girl report must serve as a clarion call to empower girls

While their aspirations are big, the agency and dignity aspects of their lives leave a lot to be desired, and if these are not addressed urgently, they will not be able to realise their aspirations. With the 2019 general elections around the corner, the fact is that approximately 65 million teenage girls will be first-time voters

India’s Republic Day celebration had, among the main attractions, an all-woman marching contingent. The armed forces showcased the role of women in the force on its tableau. As India marches ahead, it is time that she is led by women. Given that in 2020, the average age of an Indian will be 29 years, the aspirations of 80 million teenage girls of India captured in the recently published Teen Age Girls (TAG) Report 2018 needs urgent attention.

The TAG Survey began in early 2016 to understand what it means to be a teenage girl in India. No one had asked this question before, certainly not to a 74000 strong sample of teenage girls, who represented all the 80 million teenage girls of India.

The TAG Survey was designed to move beyond perceiving adolescent girls as prospective mothers, who need to give birth to healthy children, or as vulnerable soft targets who need constant protection.

During the course of a year, 1000 trained women surveyors reached villages in 600 districts equipped with digital tablets to record interviews, and equipment to measure the height, weight and haemoglobin levels of India’s teenage girls. Through this, it was clearly understood that India’s teenage girls are ready to lead the transformation of our economy. Marriage before the age of 21 is not something they would even consider, as economic independence before getting married is non-negotiable for them. Learning how to use a computer and speak English are essential — from Kutch in the west to Changlang in the east, Bandipore in the north to Tirunelveli in the south.

The nation’s report card on teenage girls tell us that:

▪ 80.1% girls are studying;

▪ 95.8% girls are unmarried;

▪ 70% wish to pursue higher education;

▪ 74.4% wish to work towards a specific career;

▪ 74.4% girls want to marry only after they are 21 years old;

▪ 40.4% are forced to defecate in the open;

▪ 45.7% do not have the access to a hygienic menstruation kit;

▪ Every second teenage girl is anaemic with a low Body Mass Index

While their aspirations are big, if these problems are not addressed, they will not be able to realise them. With the 2019 general elections around the corner, the fact is that approximately 65 million teenage girls will be first-time voters. And f the 80 million teenage girls of India were to publish their own manifesto, this is probably what it would look like:

One graduate school for girls in every municipal ward and, say, for every five gram panchayats, where they can: get a degree, have access to computers, a clean set of toilets with sanitary napkins and incinerators to dispose of used ones, and be proficient in English. Affirmative action through scholarships, exclusive buses for mobility, special schemes that empower them to move about freely, sports facilities and campaigns to rid society of the taboos associated with their wellness and health, are imperative.

An exchange between one of our young women investigators for the survey and the sarpanch of a village in Gazipur, Uttar Pradesh, proved that inequality is entrenched in the system. When insisting that the survey requires the direct involvement of the girls (through questionnaires), he was puzzled at our (misplaced, according to him) faith in the girls’ ability to answer our questions.

This TAG report serves as a clarion call for all political parties to include teenage girls in their election manifesto. Let their clamour not fall on deaf ears. Promote the essence of the TAG Report, summarised in their hashtag, #ListenToHer.

Manoj Kumar is the CEO of Naandi Foundation, Hyderabad

Source: Hindustan Times, 3/02/2019

If Humans Disappeared

Biologist E O Wilson, as well as other scientists, have studied the complex interdependence among various species in the biosphere. He found that every species makes a constructive contribution — small or great — to the ecology of the planet. For example, if vegetation decreases, herbivores suffer. And if the number of herbivores decreases, the carnivores are affected. Wilson found that only the human species does not contribute to the ecology. If we became extinct, there would hardly be any problems for other species or for the ecology. In fact, most ecological problems would be solved if humans became extinct. All scriptures say that human potential is fully realised when we contribute to the planet at the spiritual level. When we function only at the material level, our potential is underused and even misused. The Bhagavata Maha Purana offers a mission statement, “Humans should function in the material realm only for maintaining existence, not for seeking enjoyment. For they will find real happiness only in spiritual realisation.” Normally, parents nurture children. Similarly, in the cosmic family, God, the divine father, and Nature, the divine mother, maintain all living beings. And just as children live happily when they follow their parents, we too can flourish if we live in harmony with Nature and God. When children shun the protective embrace of their parents, they are open to risk. When humans reject God’s protection and embrace materialism and consumerism instead, they experience stress, anxiety, violence and ecological disaster.

Source: Economic Times, 4/02/2019

What is primitive reflex in biology?

This refers to reflex actions exhibited by newborn babies that involve no conscious thought. These reflex actions usually subside as the frontal lobe of the brain of the infant develops sufficiently during the first few months of its life. In some cases, however, certain primitive reflexes may persist beyond the first year of a child’s life. The sucking reflex, stepping reflex, and the rooting reflex are some of the primitive reflexes exhibited by newborn babies. It is believed that some primitive reflexes may simply be remnants of behaviour from the evolutionary past which may have helped infants to survive in tough conditions.

Source: The Hindu, 1/02/2019

In the Northeast, a David versus Goliath battle

With political protests erupting in the region against the Citizenship (Amendment) Bill, the BJP has been put on notice

The tiny States in India’s east, the Davids, have put the Goliath of political parties, the Bharatiya Janata Party, on notice with a carefully aimed slingshot that may hurt the giant.

Why the opposition?

The Chief Ministers of Meghalaya and Mizoram, a representative of the Nagaland Chief Minister, and an ally of the BJP government in Tripura declared their unliteral, united and unhesitating opposition to the Citizenship (Amendment) Bill of 2016, which seeks to fast track citizenship to migrants of Hindu and five other non-Muslim groups from Bangladesh, Afghanistan and Pakistan. The carefully crafted North-East Democratic Alliance of non-Congress parties in the region has stumbled.

Meghalaya’s Conrad Sangma, who runs a coalition government which includes the BJP, convened the meeting in Guwahati, the region’s political hub, challenging the BJP on its own turf. Interestingly, the Congress, which walked out of the Lok Sabha when the Bill was being passed, was initially muted. Now, it has said it will ask its MPs to vote against the Citizenship Bill in the Rajya Sabha.

Amid the din of street protests across Assam and elsewhere, reference is made time and again to the Assam Accord of 1985, which laid down the criteria, strategy and structure for the deeply troubling ‘foreigners’ issue in the State. The Accord sought to calm a movement against illegal migration that had erupted in bloodshed and confrontation taking thousands of lives between 1979 and 1985. The key concerns that the Accord sought to address, through an agreement of the Centre, the State government and the All Assam Students Union, involved not only illegal migration from Bangladesh but also constitutional safeguards for citizens and economic initiatives for the State’s growth. Such growth would benefit the entire region since Assam, the largest of the eight States, drives the regional economy.

When the BJP came to power at the Centre and in the State, it sought to fast track a key demand of the Accord, the updating of the National Register of Citizens (NRC), to ostensibly clarify the existence of large numbers of non-Indians in the State. This had been stymied by earlier Congress-led governments. However, a July 2018 NRC draft, which left out four million people, was sharply denounced as prejudiced and flawed. A group of senior retired officials wrote a letter to the Prime Minister drawing attention to what they saw as a deeply problematic process.

The Supreme Court, which has been issuing a set of ad hoc directions for a project it is directly supervising, has given NRC organisers more time to fix the problems. This came after nearly 32 lakh persons filed challenges to their non-inclusion. The Citizenship Bill came plumb in the middle of this, with government officials in Delhi asserting that the Centre is committed to it and that the Bill is being misunderstood.

By excluding Muslims from its ambit, thus making citizenship contingent on religion, the provisions in the Bill appear to be contrary to Article 14, which guarantees “equality before the law or equal protection of the law” in any part of India. The Joint Parliamentary Committee, which assessed the views of stakeholders, political and civil society groups across the country, asked the Intelligence Bureau (IB) for a figure of immediate beneficiaries of the Bill. The IB said there were just 31,313 members of these minority groups staying on long-term visas after claiming religious persecution in the three countries of focus in the Bill. But is it the Centre’s case that this small figure is the sum total of persons that it wants to benefit? This does not appear to be so, according to statements of BJP leaders in Assam, where lakhs of illegal migrants are said to have settled since 1971. However, there are no hard figures, only estimates.

At the heart of the matter is a very simple issue. The 1985 Accord, by which everyone swears, is specific and unique. It is specific to a State (hence the Assam Accord) and an issue (illegal migration), and defines the effort to settle an issue which was swamped by discord. It cannot be undone by legislation that seeks to supersede it. The Accord was sanctioned by Parliament and has acceptance in the State across party lines.

Shifting goalposts

That is why arbitrary efforts and manufactured consent are meeting such resistance. The goalposts are being changed without adequate dialogue. Lack of discussion and transparency are reasons why parts of this sensitive region erupt repeatedly. Delhi does not learn from the past. How could it expect the shifting of political goalposts to be accepted quietly? The Accord placed the cutoff year for deportation of illegals at 1971, when Bangladesh was created. The Bill changes that to 2014. Constitutional rights must be upheld. While the Bharat Ratna to Bhupen Hazarika is overdue and welcome, it cannot detract from the core questions that are being asked.

The words of Mahatma Gandhi to the emissaries of Gopinath Bordoloi, later Assam’s first Chief Minister in Independent India, on December 15, 1946 ring true today. That was when the British Cabinet Mission, through constitutional trickery, sought to impose Bengal majority control over Assam. “If Assam keeps quiet, it is finished. No one can force Assam to do what it does not want to do. It must stand independently as an autonomous unit,” he said.

Assam is speaking as are the peripheries. But is Delhi listening? The act of dialogue presupposes compromise by either side, especially the more powerful.

Sanjoy Hazarika is the International Director of the Commonwealth Human Rights Initiative. Views are personal

Source: The Hindu, 1/02/2019