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The Hindu Editorial Analysis | PDF Download

Date: 04 February 2019

 

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 in Kesavananda 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 untrammeled 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 immunized 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.

â–ª As A.G. Noorani has pointed out, Conrad was affected by his own country’s history.

â–ª 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.

â–ª 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.

Imagining alternative futures Why the Young India Adhikar March calls for greater civic solidarity

  • The caricaturing of scientific inquiry at the recent Indian Science Congress (ISC) is only symptomatic of the larger ideological thrust through which institutions of higher education in India are now sought to be governed. Further, the choice of venue for the ISC this year — a private university in Punjab — highlights the boost that investors of private capital in higher education receive even as funding cutbacks at public universities have threatened the closure of 167 centres for women’s studies and 35 centres for studies in social exclusion.
  • That a proposed Jio Institute was granted the ‘Institute of Eminence’ status much before it could even open is a grim reminder of state support now being unambiguously willed upon the private model.
  • It is the same political imperative that is directing public-funded institutions towards ‘graded autonomy’ — duly recognised as a covert entry point for privatisation.
  • The threat to autonomy is writ large in the recent moves to scrap the University Grants Commission (UGC) as a funding body for higher education, in keeping with the World Trade Organisation’s mandate that views education as a tradable commodity, not as a right that every citizen can demand of the state.

Right versus privilege

  • In 2015, the UGC, citing a fund crunch, resolved to scrap the non-NET fellowship altogether. • After student protests across universities (hashtagged on social media as ‘Occupy UGC’), articulated how research fellowships were not state doles but instead sought to incentivise knowledge creation, the government was forced to retract the move.
  • But soon after, the release of similar non-NET fellowships for Scheduled Castes/Scheduled Tribes and minority students — namely, the Rajiv Gandhi National Fellowship and Maulana Azad National Fellowship — came to be stalled, pending a new set of guidelines that severely curtailed eligibility.
  • The Ministry of Human Resource Development’s All India Survey on Higher Education (AISHE) Report 2017-18 notes that
  • The gross enrolment ratio across institutions of higher education has risen to 25.8% from 19.4% in 2010-11.
  • The GER is an index of the proportion of citizens between 18 and 23 years — in every sample size of 100 — who have structurally secured entry into tertiary education, while exit figures (dropouts) are left unaccounted for.
  • The inflationary tendencies of AISHE figures notwithstanding, the report points out that the GER is 21.8% for SCs and 15.9% for STs “as compared to the national GER”. However, deeper scrutiny shows that though the standard formula for calculating GER must take the population census in the relevant age group as the base sample size, the GER for Dalit-Adivasis is produced by altering the methodology..
  • Instead of taking the Census total as base figure, it is the fractional enrolment count that is used to produce fictions of inflated SC/ST GER.
  • When population data (Table 38 of the report) is read in consonance with enrolment data (Table 14), the arithmetic shows a GER of 3.72% for Dalits and 1.35% for Adivasis.
  • But in an identical age sample of 100 students, a minimum of 17 are from Dalit backgrounds and nearly nine from Adivasi communities.
  • In actual terms, therefore, less than four out of 17 SC students and one out of every nine ST students appear to have entry-level access to higher education. The GER for minority students from non-Hindu backgrounds is a meagre 1.87% (against the official 7.2%)
  • Analysed against Census 2011 data, less than two out of every 20 minority students move to tertiary education.
  • Ironically, the enrolment ratio for Hindu upper castes is 8.47%, implying that more than eight out of every 10 caste Hindus access higher education. The government’s recent electoral gimmick of enabling 10% reservation in educational institutions for “economically weaker” upper-caste sections only performs a complete inversion of affirmative action policies, especially when documented data point to an entrenched legacy of caste-based discrimination.
  • The withdrawal of non-NET fellowships for the socially marginalised (accompanied by reservations for dominant caste groups) is informed by a policy transition from a public-funded model of inclusive economic planning to a private user-pay principle.
  • It follows from the reform measures proposed by the Ambani-Birla Report on higher education (2000), and subsequently vindicated by the National Knowledge Commission’s emphasis on “need-blind admissions” in higher education.
  • The assumption behind a near-complete withdrawal of research funding begins by linking the quest for higher knowledge with an illusion of proportionately higher employment opportunities. But the reality is that with unemployment rates soaring to a 45-year high, the government’s disinvestment from the higher education sector can only end up creating a highly skilled, lowly paid, indebted workforce.
  • The AISHE report contains traces of more statistical falsification — adjusting “growth” in the number of teaching positions by changing the base year for comparison (to 2010-11 from 2013-14).
  • As the report shows (Table 51), there is a sharp annual decline in the number of teachers employed since 2015-16.
  • In the past three years, teaching strength in higher education institutions has fallen from 15.19 lakh to 12.85 lakh, with most of the losses reflected against reserved permanent posts.
  • The move to a 13-point roster in appointments will only aggravate these losses, till teaching becomes an exclusively upper caste profession.
  • Alarmingly, through this period of reduction in teaching jobs, 104 new universities have been instituted, 66 of which are “privately managed”. It is no surprise that many of the brightest minds from the best public institutions are now lapped up by elite private universities “equipped with world-class infrastructure”.

A pushback

  • It is clear that a nationalist crusade is only mortgaging public education systems to transnational capital.
  • This is also articulated in the “impatience” that Amartya Sen spoke about in the context of the recent ISC, an impatience that is fomenting student unrest in campuses. It is the same impatience — in the form of anger at being sidelined by iniquitous government policies that are supplanting the vision and promise of the public university — which is fuelling the student-led ‘Young India Adhikar March’ (to be held on February 7).
  • In the last year or so, one has seen collective rights assertions in the form of well-publicised rallies by farmers, the marginalised and women — all signs of the anger of different constituencies reeling under the policies of an indifferent government.
  • The ‘Young India Adhikar March’ is a representation of over 40 youth organisations demanding, among other things, an end to fee hikes, gender discriminatory laws, a syllabus free of “saffron” taints, alongside the guarantee of employment and academic, intellectual freedoms of teaching and learning. .• If the ‘publicness’ of public education must come to occupy our idea of the ‘nation’, it is time we march with our youth and demand the right to imagine alternative futures. Standard deviations Delay in releasing key employment data has undermined the credibility of data officialdom The resignations of the National Statistical Commission’s acting Chairperson P.C. Mohanan and member J.V. Meenakshi appear linked to the Centre’s refusal to release new data on employment that were due to be made public in December 2018. They could also be related to unease about the recently unveiled backseries data on the economy, which recorded slower growth during the UPAled government’s rule, and were released by the NITI Aayog bypassing convention and the commission’s views. Reports suggest that the findings of the new Periodic Labour Force Survey, for July 2017-December 2018, are not too flattering, with unemployment registering a five-decade high. The government has said no such reservations were expressed by Mr. Mohanan or Dr. Meenakshi during NSC meetings and that the report will be released after ‘quarterly’ data for the survey period is processed. A key role of the NSC, set up in 2006, is to verify whether data being put in the public domain are reliable and adequate. Information has been collected and disseminated by successive governments under laid-down schedules, earning Indian data greater global trust than most other emerging market peers, especially China.
  • On the question of job-creation for the youth, the Prime Minister and his Cabinet have been building an argument that jobs abound, but credible data are missing.
  • The National Sample Survey Organisation’s quinquennial employment surveys were to be conducted in 2016-17. The year was switched to 2017-18 as the new Labour Force Survey was being prepared to replace it.
  • Separately, a quarterly survey of select employment-intensive sectors initiated by the Labour Bureau after the 2008 global financial crisis, that provided some clarity on ground realities, was inexplicably junked.
  • Instead, proxy data from enrolments into social security schemes for formal sector employees are being touted as a sign of job-creation: economists have rightly called them out as inaccurate.
  • Even then, Arun Jaitley, in his last year’s Budget speech, cited ‘an independent study’ to claim seven million formal jobs will be created in 2018-19
  • The Centre for Monitoring Indian Economy has pegged job losses in 2018 at 11 million based on its regular employment surveys. The government’s coy approach to jobs-related data may be due to its disastrous demonetisation gambit which hurt supply chains and informal jobs in the economy and whose effects have lingered.
  • Contrast this with the NSSO surveys of 2009-10 that revealed little good news on household incomes and job-creation, thanks to after-effects of the global financial crisis. The UPA didn’t dither from releasing the data, took criticism on its chin, explained it was an exceptional situation and commissioned another set of surveys in 2011-12 to correct for the timing. The Modi government should have treaded the same path without upending India’s statistical integrity. The Donald Trump administration’s decision to withdraw from the Intermediate-Range Nuclear Forces (INF) treaty with Russia is a retrograde step. Signed in 1987 by Ronald Reagan and Mikhail Gorbachev, it barred both countries from deploying land-launched cruise missiles in the 500- to 5,500-km range. However, Russia appears to have been covertly violating it in letter and spirit. The U.S. in 2008 expressed concern over the Russian Novator 9M729 missile tests and in 2014 alleged that Moscow was testing a ground-based cruise missile. Yet, the U.S. response cannot be regarded as purely retaliatory. Both Mr. Trump and his National Security Adviser John Bolton are on the record expressing what some consider to be a sense of disregard for arms control agreements. Before taking up the NSA role, Mr. Bolton said in his book that the U.S. “arms control theology” had been “kept on life support during the Clinton presidency by devotion and prayer rather than hard reality”. Mr. Trump, who scuppered the nuclear agreement with Iran, has hinted he would refuse to abide by a treaty that other parties were disregarding. There is now a sense of alarm that the New Strategic Arms Reduction Treaty (START), which limits both countries’ arsenal of intercontinental ballistic missiles, and will lapse in 2021, might be scrapped next. Hawkish move The U.S.’s unilateral withdrawal from a nuclear treaty threatens to kick-start a new arms race
  • At the heart of this worrisome echo of the Cold War years is the changing balance of power in global nuclear politics heralded by China’s rise as a regional hegemon; its growing arsenal poses a threat in the eyes of strategists in Washington.
  • In 2018, the U.S. Nuclear Posture Review noted that Beijing was steaming forward with the expansion of its cruise-missile arsenal, potentially neutralising the capability of American warships that could seek to approach the Chinese coastline during a standoff.
  • Shifting geo-politics also requires that European concerns be factored into strategic discussions on the INF, particularly because it is Europe that is most immediately threatened by the Russian stockpile.
  • However, going by the surprised reactions from European officials, it appears that Mr. Trump may not have consulted with European allies before announcing the suspension of the treaty. Mr. Trump’s thinking may rest on the fact that he could now develop ground-launched missiles, and perhaps keep Moscow’s aggression in check through a military-posture superiority, and also save the exchequer some cash, for this option is cheaper than cruise missiles that can be fired from aircraft, ships, or submarines. Nevertheless, in pulling out of the INF, Washington is effectively throwing away leverage it may have had with Russia on an issue of global concern