Reservation Is About Adequate Representation, Not Poverty Eradication

The idea behind reservation was always to disavow caste-monopoly in the public sector.

The Supreme Court’s recent “opinion” on the revision of reservation lists and its coverage by mass media has created an impression that reservation was meant for the economic upliftment of Dalits and, therefore, those who have become economically “affluent” after getting the benefits of reservation should be separated from the category, so that the economically poor among them may also take advantage of the provisions. A relevant part of the court’s decision is cited below:

“Now there is a cry within the reserved classes. By now, there are affluent and socially and economically advanced classes within Scheduled Classes and Scheduled Tribes. There is voice by deprived persons of social upliftment of some of the SCs and STs, but they still do not permit benefits to trickle down to the needy. Thus, there is a struggle within, as to worthiness for entitlement within reserved classes of SCs and STs and other backward classes.

In our opinion, it was rightly urged by Dr. Rajeev Dhawan that the Government is required to revise the lists. It can be done presently without disturbing the percentage of reservation so that benefits trickle down to the needy and are not usurped by those classes who have come up after obtaining the benefits for the last 70 years or after their inclusion in the list.”

The observation was made by a five-judge bench headed by Justice Arun Mishra in Chebrolu Leela Prasad Rao & Ors. v. State of A.P. and Ors. on April 22, 2020. The economic angle to reservation is explicit in the above observation. Let us investigate whether the views correspond to the intention of the constitution-makers. Article 16(4) of the constitution of India which provides for reservation reads as follows:

“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

Article 16(4) renders it clear that reservation was enacted to ensure adequate representation of backward classes in the public services. A corollary to adequate representation is “sharing of state power”, and the same was accepted as an objective of the provision in the Indra Sawhney (1992) judgment. Sharing of state power by the downtrodden was necessary because at the time of independence, the administration had been controlled by one community or a few communities only, as Ambedkar pointed out before the constituent assembly. However, why could the other candidates not join public services?

The delegates present in the constituent assembly enumerated different reasons for it. For instance, R.M. Nalavade and P. Kakkan shared their experiences and said that Harijans and candidates of other depressed classes are not selected. Explaining the saga of discrimination, H.J. Khandekar stated that:

“The condition is so deplorable that though the candidates of the scheduled castes apply for certain Government posts, they are not selected for the posts because the people who select the candidates do not belong to that community or that section.”

Thus, it was not economic poverty but caste that accounted for their deprivation of government jobs. In such a situation, reservation was the only option to ensure entry and adequate representation of the candidates of SCs and STs in the state apparatus. Realising the inevitability of reservation, A.A. Khan opined before the constituent assembly that,

“…in case state services are monopolised by one particular class, then others might think that their existence has been ignored. This very idea will become a source of creating unpleasantness in the country”.

Thus, in no case was reservation seen as a device to eradicate poverty, nor was it demanded in favour of the economically poor. It was brought in because without reserving a certain number of posts, the selection bodies which were monopolised by the so-called upper castes, would not recruit Dalits due to their ingrained class-bias.

In this context, another lingering question arises over how to define the expression “backward class” under Article 16(4) for whom reservation is to be provided. Though, Article 16(4) leaves it to the state to determine (by using the words “in the opinion of the state”), however, the drafting history of the provision may be a useful source to interpret the meaning of the term “backward class”.

Before the assembly, some members suggested that SCs, STs and Harijans are “backward classes”, while others advocated few tests, such as inability to protect one’s interests; and social, educational or cultural backwardness. A few of them also emphasised upon economic and religious backwardness, however, reading the negotiating history of Article 16(4) as a whole, as explained above, it is evident that economic backwardness was neither an independent nor a dominant factor to qualify for reservation. In this connection, the nine-judge bench affirmed in the Indra Sawhney (1992) judgment, that in the enactment of Article 16(4),

“…the accent was upon social backwardness. It goes without saying that in the Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty—which in turn breeds and perpetuates the social and educational backwardness.”

The bench further held that:

“…by the speeches of Dr. Ambedkar and Shri K. M. Munshi, it was made clear that the “class of citizens…not adequately represented in the services under the State” meant only those classes of citizens who were not so represented on account of their social backwardness.”

Thus, the entire debate on reservation centred around social backwardness and the victims of various forms of caste-based discrimination. Sadly, such people were bound to be poor too. Therefore, reservation was never aimed at economic empowerment of the poor. The idea was always to disavow caste-monopoly in the public sector.

Besides the economic criterion, the members of the constituent assembly also discarded the proposals to permit reservation in a time-bound frame and envisaged its continuity until factors causing social backwardness e.g. non-representation or poor share in the state services come to an end.

The issue of cessation of social backwardness needs to be analysed with respect to the Supreme Court’s recent opinion on the revision of reservation lists. The five-judge bench opined, though without presenting any empirical data, that now there are “affluent and socially and economically advanced classes” in SCs and STs also, who should no more be permitted to avail reservation. This opinion needs to undergo a reality check.

Are the SCs and STs adequately represented in the higher echelons of the civil servicesacademia, judiciary – both the Supreme Court and the high courts – police, policy-making, and other public services? Does employment in lower cadres indicate economic affluence and the end of social backwardness? Has caste-based discrimination been completely wiped out from the Indian society? Has upper-caste monopoly in public institutions vanished in its entirety?

The answers to all these questions is a big “no”. In fact, the appointment of a Dalit judge in the Supreme Court after almost a decade and his critical absence in the five-judge bench deciding on reservation is telling of the misery of affluence and representative character of the public institutions.

It is during crucial moments like this, that we feel compelled to recall the rich traditions of the constituent assembly where the depressed classes were not just represented by their delegates, but they even permitted extra time to voice their concerns. During the deliberation on the drat article relating to reservation, Khandekar rose before the assembly and urged that:

“The speakers here are mostly Harijan speakers and they require some time to explain the situation. I would therefore request you (the Chair) to increase the time limit so that they can explain and support this article very well.”

The vice president agreed to the request.

Kailash Jeenger is assistant professor, Campus Law Centre, Faculty of Law, University of Delhi. The article is a repost from the Wire and can be accessed here

Special thanks to the author and the Wire for eliciting interest and permission for the repost.

The Digital Information Security in Healthcare Act of India: An Effective Remedy for Privacy Concerns, or a Placebo?

Introduction

The K.S. Puttaswamy v. Union of India judgment held that the state has an obligation to take all measures necessary to protect the privacy of individuals. To fulfil this obligation in the healthcare sector of India, the Digital Information Security in Healthcare Act (‘DISHA’ or ‘the Act’) was drafted by the Ministry of Health and Welfare in 2018, and was kept open for comments from the public for a month. This need was propelled by the impact of General Data Protection Regulation (GDPR) on a global level, as well as Justice Srikrishna Committee’s recommendations on the data protection framework in India. The Act deals with the protection, privacy, standardization and confidentiality of healthcare data. However, whether it is successful in fulfilling its purpose, is a matter of contention.

Before DISHA, Sensitive Personal Data or Information (‘SPDI’) was regulated by the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011, under the Information Technology Act, 2000. However, these provisions were insufficient to protect data as per contemporary standards, as they are archaic, and focus on attributing responsibility to body corporates, thereby excluding a large number of medical establishments that don’t fall within this category. Confidentiality of records under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 is also insufficient, as it only deals with specific medical procedures (such as abortions) and isn’t applicable to all patients and services. Conversely, DISHA applies to collectors, generators, and processors of digital health data.

What is “Data” under DISHA?

This “Digital Health Data” protected under DISHA includes-

  1. Mental or physical health of the patient;
  2. Health services availed by them;
  3. Organs or bodily substance donated;
  4. Results of bodily tests or examination;
  5. Details of clinical establishments set up by the individual;
  6. Any other information collected in the course of providing healthcare services.

The ownership of such data remains with the person who provides it, thereby preserving the data autonomy of citizens.

Comparative and Critical Analysis

A regular breach is constituted upon contravention of DISHA’s provisions with regards to the collection, disclosure, processing, storage, destruction or unauthorised modification of data. In such cases, the data owner is entitled to be compensated by the entity responsible for the breach. A serious breach is constituted when the data is not de-identified or anonymised, and is used for commercial purposes. It is punishable by imprisonment of up to five years, and a minimum fine of INR 500,000. In comparison, General Data Protection Regulation (GDPR) provides for a fine of either (i) up to 4% of the organisation’s annual global revenue, or (ii) 20 million Euros (approximately INR 1.6 billion).[1] The Health Insurance Portability and Accountability Act (HIPAA) of the United States evaluates the gravity of the breach, classifies it, and determines the penalty, which can be up to USD 1.5 million per year. In comparison, the maximum penalty under DISHA is INR 100,00,000 (approximately USD 1,30,000). This isn’t a sufficient deterrent to affluent entities, that may acquire more benefit out of the breaches (even after factoring in the penalties) than through compliance. Therefore, to create a significant deterrent, the amount of fine to be imposed for breaches, ought to be increased.

Another shortcoming of DISHA is the lack of an explicit provision for the Right to be Forgotten. This right allows a person to demand that the data related to them be erased from a platform. The lack of such a provision allows clinical establishments to hold the patients’ data indefinitely, depriving them from the option of rescinding their consent. Although this right has been included in the Personal Data Protection Bill, 2019, which is a newly-minted Indian bill aimed at privacy protection, to expressly include this right in DISHA is a pivotal step that ought to be taken.

Another criticism arises from drawing a parallel between Section 29 of DISHA, and the concerns raised by a former judge of the Indian Supreme Court- Justice B.N. Srikrishna, regarding the Personal Data Protection Bill, 2019. Justice Srikrishna had stated that the provisions allowing the government to access private data on the grounds of public order or sovereignty could be used to turn India into an Orwellian State.[2] In the same vein, Section 29 of DISHA allows the contravention of data privacy based on grounds like urgency of decision, improving coordination amongst healthcare facilities, developing public health facilities and research etc. These grounds may be used arbitrarily due to lack of safeguards, which takes away from the very objective of having such a legislation in place. The legislation allows the data-owner to retain his or her authority over the concerned data, but still permits its usage in a manner that might not be consistent with the way in which such data-owner wishes his data to be used. While the objective behind such exceptions may be noble, they will be prone to misuse on account of lack of defined provisions for transparency and accountability. 

In the words of Hon’ble Justice H.R. Khanna-

“[the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law.”[3]

By stating this, Justice Khanna highlighted the tragedy of the death of liberty that ensues when principles of natural justice and rule of law are not inculcated in the newly minted provisions, despite the legislation having a noble premise.Similarly, despite the major positive implications DISHA has on data privacy in the healthcare sector, there is still room for substantial improvement so that it may serve its purpose in the truest sense.

Darshana Paltanwale is a fourth year B.A. LL.B  (Hons.) student at Symbiosis Law School, Pune.

The Mahabharata: An Analysis of Female Gender Roles in the Epic

The foundation of Hindu thought is made of sacred tales of gods, kings and sages.[1] The Mahabharata is a beautiful, yet complex maze of different stories, characters and themes that are woven in the broader story of a fight between two sets of cousins. It is a poetic representation of many facets of life while simultaneously reflecting various relationships and status of women in society. Women played an essential role during the Mahabharata. Everywhere in the Epic, the Indian woman is described as beautiful and of high moral character.[2] Different expressions are used to describe the personality and beauty of women. Behind this physical beauty lies a more dark and twisted truth. 

This article shall analyse the various roles women play in their lives during the Mahabharata. Instead of focussing on individual anecdotes, the author shall do a theme-wise study. An analysis of the role of a woman as a wife and a mother is done and the article concludes with a brief analysis of the legislation and role of women in society as we know it today.

  1. ROLE OF WOMAN AS A WIFE

The first instance is that of Anamika, a woman without a name. Significantly, her name has not been disclosed, and she represents the general category of homemakers. The story unfolds with a Brahman, Kaushika, arriving at Anamika’s house for some alms. She keeps him waiting, which causes him to lose his temper. Anamika’s response to his anger is that as a wife, her duty extends first to the service of her husband, and then to anyone else. 

Savitri is the most famous example of a perfect wife. She chose Satyavan as her spouse even though she knew he would die after one year.[3] Through her firm insistence, determination and devotion to her marital duties of a wife, she was able to win over Yama, the Lord of Death who granted her four boons and restored life to Satyavan with the fifth boon.[4] To save her husband from the arms of Death, she followed the Dharma of an ideal wife. It is only a virtuous wife who can conquer all, even Death. Savitri continues to be honoured and worshipped by Indian women as a faithful and loyal wife. [5]

Gandhari upon learning that her husband is blind took to disability too by blindfolding her eyes. She fulfils a wife’s Dharma, which is to follow her husband in sickness and in health. The seeds of sacrifice that she sows bear a ripe fruit later when she can use her acquired powers to strengthen Duryodhana’s body. This shows great strength of mind and a spirit of personal sacrifice. Gandhari’s decision to bandage her eyes shut permanently in emulation of her husband’s blindness, is a disempowering submission to another’s interests.[6]

It would be unfair to conclude this segment without mentioning Draupadi. When Arjuna took Draupadi back home to his mother, Kunti with her back to the couple told Arjuna to divide what he had gotten among his brothers. This made Draupadi, also known as Panchali, the wife of five (in Hindi, paanch) brothers. She went from a prized possession, won by Arjuna in a Swayamvar, to a victim of circumstance in a matter of a few moments. 

Draupadi suffers a worse fate in the years to come. Her eldest husband Yudhishthira places her as collateral when all else is lost, in a game of dice against his cousin, and the eldest of the Kauravas, Duryodhana. She was disrobed and humiliated in the assembly. Despite all the humiliation faced by Draupadi, she continued to follow her spouses to exile and sacrificed all that was dear to her heart. This shows her dedication, perseverance and courage. In South India, Draupadi is worshipped as the fierce virgin-goddess who was let down by her husbands.[7]

This effectively points to the society’s understanding or rather expectation of a woman’s Dharma , which is meant for subservience to  her husband in life and becoming a sati after his Death to remain united to him in subservience in the afterlife .[8]

  1. ROLE OF WOMAN AS A MOTHER

Indian motherhood has always played a sacrosanct role in a woman’s life and has often overshadowed the other identities she holds.[9] In the patriarchal Mahabharata, woman’s role of wives and mothers play a significant part. They have a voice which cannot easily be dismissed. Ironically, the mothers are placed on a pedestal in a patriarchal society, and such glorification co-exists with their low social status. Manu has stated, “of the seed and the womb, the seed is superior.”[10]

After Shakuntala was abandoned by her husband King Dushyanta, whom she had married through the ceremonies of Gandharva-vivaha, she set forth with her son by her side to the kingdom to rightfully claim what was hers. She was insistent that her son, Bharata, be crowned king, and she succeeded in her endeavours.

Similarly, Satyavati was insistent that her children would be king. It was her insistence that led Shantanu’s first son Devarata, later known as Bhishma, to take the vow of celibacy so that his father Shantanu could marry again. Satyavati kept the Kuru lineage intact. In her quest for the preservation of the Kuru dynasty, she was ready to sacrifice self-interest. Her actions as the queen of the Kurus at once demonstrate her independence, her decisiveness, and her commitment to putting institutions above individuals.[11]

Kunti gave birth to three sons. Pandu’s second wife gave birth to twins. Pandu and Madri died, leaving Kunti to look after the children by herself. She is symbolic for all single mothers. Even though Nakul and Sehdeva are Kunti’s step-children, she is not biased against them. Both Kunti and Gandhari want the best for their children and wish their sons to be victorious in the war at Kurukshetra. Kunti swallowed her pride and approached Karana to tell him the truth of his birth, hoping he would side with the Pandavas and make them his ally. Though this did not happen, he assured her that his fight was with Arjuna and she would forever remain the mother of five sons. While Kunti faces the loss of only one son, Karana, Gandhari, on the other hand, loses all hundred of her children in the war. Draupadi also loses her children to the war.

  1. CONCLUSION

The women in the Mahabharata have been treated as slaves, property, chattel and commodities used for the pleasure of men. The key characteristics of women are seen as submission, suppression, obedience and silence. They are tools of male ambition. Women like Gandhari, Kunti, and Draupadi stand out, sometimes opposing the injustice of the male world.[12] The exploitation faced by women in the Mahabharata can be compared to the #MeToo movement, which has become revolutionary in the present society.

Modern-day India has seen a transformation in the status of women. Several laws are in place in India to protect wives from dowry[13], cruelty[14] and provide them maintenance[15]. A field that still requires reformation is marital rape, which is not recognised as a punishable offence in India.[16] Motherhood is central to the structural configuration of a family.[17] Religious customs in India do not ensure equal rights for women. This gap is being attempted to be bridged by legislation. Females now have adoption rights[18], and a husband must take his wife’s permission before adopting a child.[19] The mother can hold the position of a natural guardian.[20] In the international sphere, there is the Convention on Elimination of Discrimination Against Women, 1976, which is described as the international bill of rights for women. 

Despite laws being in place, women continue to be subjected to violence, exploitation, harassment and subjugation in a patriarchal society. There has not been much evolution from the age of the Mahabharata to present-day society. The plight of the women in the 21st century is not different from that of the women in ancient times.

REFERENCES AND CITATIONS

[1] DEVDUTT PATNAIK, JAYA: AN ILLUSTRATED RETELLING OF THE MAHABHARATA, 7 (2010)

[2] V. I. Kalyanov, The Image of the Indian Woman in the Mahabharata, 58/59 ANNALS OF THE BHANDARKAR ORIENTAL RESEARCH INSTITUTE 161, 162 (1977 – 1978)

[3] CHATURVEDI BADRINATH, THE WOMEN OF THE MAHABHARATA: THE QUESTION OF TRUTH, 58 (2008)

[4] V. I. Kalyanov, The Image of the Indian Woman in the Mahabharata, 58/59 ANNALS OF THE BHANDARKAR ORIENTAL RESEARCH INSTITUTE 161, 162 (1977 – 1978)

[5] Chapla Verma, The Wildering Gloom: Women’s place in Buddhist History, in FACES OF THE FEMININE IN ANCIENT, MEDIVAL AND MODERN INDIA, 69, 72 (Mandrakanta Bose, ed. 2000)

[6] Madhusraba Dasgupta, Usable Women: The Tales of Amba and Madhavi, in FACES OF THE FEMININE IN ANCIENT, MEDIVAL AND MODERN INDIA, 48, 53 (Mandrakanta Bose, ed. 2000)

[7] DEVDUTT PATNAIK, JAYA: AN ILLUSTRATED RETELLING OF THE MAHABHARATA, 150 (2010)

[8] Dr. Kavita Sharma, Women Ascetics in Mahabharata, A Journal of Gender and Heritage (2011)

[9] Chitra Sinha, Images of Motherhood: The Hindu Code Bill Discourse, 42 ECONOMIC AND POLITICAL WEEKLY, 49 (2007)

[10] WENDY DONIGER AND BRIAN K. SMITH, THE LAWS OF MANU, 201 (1999)

[11] Jayatri Ghosh, Satyavati: The Matriarch of the Mahabharata, in FACES OF THE FEMININE IN ANCIENT, MEDIVAL AND MODERN INDIA, 33 (Mandrakanta Bose, ed. 2000)

[12] Jayatri Ghosh, Satyavati: The Matriarch of the Mahabharata, in FACES OF THE FEMININE IN ANCIENT, MEDIEVAL AND MODERN INDIA, 33 (Mandrakanta Bose, ed. 2000)

[13] §304-B, Indian Penal Code, 1860; see also Dowry Prohibition Act, 1961

[14] §498-A, Indian Penal Code, 1860

[15] §18, Hindu Adoption and Maintenance Act, 1956

[16] Exception 2, §375, Indian Penal Code, 1860

[17] Chitra Sinha, Images of Motherhood: The Hindu Code Bill Discourse, 42 ECONOMIC AND POLITICAL WEEKLY, 49 (2007)

[18] §8, Hindu Adoption and Maintenance Act, 1995

[19] Proviso, §7, Hindu Adoption and Maintenance Act, 1995

[20] §6, Hindu Minority and Guardianship Act, 1956

Chaitali Wadhwa is a post-graduate from National Law University Delhi. She is currently a Research Associate with Faculty of Law, Manav Rachna University.


Essential Commodities and COVID-19 Testing: Good Intentions, Bad Incentives.

Earlier this year in January, the Economic Survey was released by the Ministry of Finance with a special focus on wealth creation. Among the many recommendations, the survey also had suggested the repeal of the Essential Commodities Act, 1955. The Essential Commodities Act allows for the beneficial interference of the government in the market. The Act gives the state governments the power to come up with orders to control the production, supply, trade, and distribution of essential goods in order to ensure their availability in the market at affordable prices. The case for the repeal of the Essential Commodities Act is quite simple, like all government interventions, it leads to results that are opposite to the intended ones.

Indeed, over the years, the Essential Commodities Act has produced effects opposite to its mandate. This is because the measures under Section 3 of the Act are preventive and prohibition based. It lays down a mechanism of licenses and permits to control the manufacturing and distribution of goods, allows for price controls to ensure affordability and even gives the power to withhold or mandate the sale of essential goods. This led to the creation of a vicious cycle. The licenses and permits under the Act required government approval. Initially, the applications were limited and cleared on time. But as more and more goods were under the ambit of the Act, the government machinery got clogged. This encouraged the practice of bribing to get the applications cleared. Since the capacity of paying a bribe is not equally distributed, only a few well-off producers and distributors were able to capitalize on the market. The limited number of producers and distributors also meant that the shortages were perennial. This led to frequent shooting-up of prices. To control these frequent spurts, the government imposed price controls. The price controls reduced the incentive to scale production as the compensation received was not optimum and low. Thus, the shortages got further exacerbated and gave rise to black marketing. In the last couple of years, the folly has been realized, and more and more products have been removed from the ambit of the Essential Commodities Act. For example, Cement faced perennial shortages until it was decontrolled in 1989. It is hard to imagine the infrastructural growth in India since the 1990s if cement was allowed to be governed by the Act.

On this account, last month, the Central Government invoked the Act to bring Hand sanitizer and protective masks under its ambit to control the shortages and over-consumption, driven by recommendations of health experts advising their usage as a precautionary measure against COVID-19 disease. The order did not lay down any harsh measure and only asked the state to ensure that the mask and the hand sanitizers were available on MRP. But the problem persists. Such caps have unintended effects. For example, a possible outcome could be that the cheaply available hand sanitizer can incentivize the consumer to use it as a substitute to the conventional soap, further increasing the demand. While we await the data to understand the implications of the order, the Economic Survey shows how similar actions to stabilize the price of onions last year, increased shortages and prices due to the application of the Essential Commodities Act.

This brings me to the recent Supreme Court order mandating that the tests for COVID-19 disease should be entirely free. The order is well-intentioned as it seeks to ensure that the test is affordable to all. But similarly, it has the potential to produce an opposite effect for several reasons. To begin with, it assumes that the only hindrance to getting a test done is the cost and disregards the capacity. In other words, it does not consider that one of the primary hindrances in a country like India is not just the cost for the test, but also the capacity to do tests. While we have scaled our testing capacity exponentially, it is unlikely that we will be able to reach the optimum capacity, where everyone who wants to get tested or needs to be tested will be to avail the facility. Thus, we need to rationalize our testing capacity.

The best way to do it is to allow those who are capable of paying the higher cost of private testing. It limits the burden on the government testing facilities to cater exclusively to the less well-off. Since the government also cannot completely absorb the testing requirements in the later stages of the spread of the disease, there is, no doubt, a case for the private sector to share its facilities. However, as I mentioned above, the problem with the Essential Commodities Act is that it seeks solutions that are prohibitive and preventive instead of incentive-based. Here an incentive-based approach would be to compensate the private testing labs for providing their facilities, free or at a subsidized cost, to the less fortunate based on volume. The higher the volume, the larger would be the compensation. It not only incentivizes the private player to provide their facilities but also encourages them to scale-up their operations.

The second problem with free testing is that it encourages ineffective testing. In our country, flu and other forms of seasonal diseases are common. While COVID-19 symptoms are distinguishable from seasonal diseases, free testing encourages a safety-check test on the possibility of contracting the disease. Not only does this it encourages more movement, increasing the chances of contracting the disease, but in a situation of lockdown when most of the population is in a semi-isolation state, a positive result simply shifts the patient from home isolation to hospital isolation. Therefore, what is required is not just individual testing, it is certainly important, but more randomized testing covering larger population samples to know the extent of spread.

The third problem, of course, flows from the first one. So long as the testing is taken to be free, the private labs have limited options. They can either sign themselves for economic hardship as the testing increases, or they can choose to not develop the facilities at all. Both the scenarios harm the supply side, which is the primary goal as of now. Thus, the government needs to apply its mind before approaching the court for the next hearing.

Postscript – Incidentally, the constitutional validity of the Essential Commodities Act was challenged before the Rajasthan High Court in the matter of Thanmal vs Union of IndiaThe Court held that the Act was in the public interest and the restrictions placed on Article 19 (1) (g) with respect to the right to carry business and trade were reasonable as the controls placed were necessitated by the demands of the community.

The Court did not have the benefit of hindsight in its judgment. If ‘reasonable’ here signifies a restriction placed in accordance with reason, it seems the case for retaining the Essential Commodities Act has long been defeated.

Anuj Aggarwal is an alumnus of Campus Law Centre, University of Delhi and specializes in Dispute Resolution. The article is a repost from his blog and can be accessed here.

A theatre of Justice? a reflection on George H. Gadbois Jr’s Supreme Court of India: The Beginnings

I. Unpacking the court through the book 


Seated on the extreme right in the photograph on the front cover of the book is a gentleman who distinguishes himself by his sartorial choices. While the remaining justices are adorned with the customary wig, he appears content with only his dark robe. Yet he appears symbolic of the gradual change that would be embraced by our highest court, as it would emerge from the shadow of its colonial predecessor (the Federal court) to carve an identity of its own.

The book is aptly titled Supreme Court of India: The Beginnings, for despite Gadbois’ authoritative voice, his text prods us to examine the genesis of the imperious court from multiple perspectives.Devoid of any rhetorical flourish, Gadbois’ parsimonious prose sees his scholarship shine through the tome.

An elaborate introduction by the editors(Ram & Raghavan) reveals both Gadbois’ motivation(an infatuation with the court borne out of a marvelous first impression of its architecture)and the method behind his manuscript(an exhaustive study of archives housed at the Indian Law Institute and the Supreme Court Libraries).

They mention how Gadbois later eschews bare textual reading of academic material by coloring his subsequent efforts with anecdotes from judges themselves(he conducted only one interview for this thesis) which gives them a fuller texture. This juxtaposes beautifully with the evolution of the court itself, which is originally a forum of appeal only to later acquire sinews which embrace all corners of our polity.

II. An inheritance of irreverence: Before the court was supreme 

The first two chapters of the book are devoted to the federal court, a predecessor of our Supreme Court established vide the Government of India Act, 1935.The Federal Court is granted mere 

advisory powers over the High courts, while it works under the supervision of the Privy Council. Prior to its creation Gadbois mentions that the demand for an indigenous court of ultimate appeal (by advocates like Hari Gour) is rejected by fellow Indians (Nehru and Sapru) who value the impartiality of the Privy Council as the final arbiter, due to its detachment from the local politics of the day. 

Gadbois details the Federal Court’s opposition to the preventive detention of political prisoners during the Quit India movement,even amidst harsh opposition from its own executive. This endears it to the native freedom fighters. The Privy Council’s respect for its judgements further enhances its reputation. The Council upholds the Federal court’s judgement in five out of ten cases which are referred to it by the Federal court itself, and grants Special Leave to Appeal in only four cases (out of which it overturns the verdict in only one instance). The endorsement strengthens the case for establishing a domestic supreme court (amongst the natives) which could be trusted to remain impartial when subjected to severe pressures from an otherwise deeply fractured society. That the original reservation regarding the creation of an indigenous court is on the wane becomes clear when the Indian jurists reject Chief Justice Spens’ offer allowing litigants to choose the forum of appeal(either Federal court or the Privy Council) in 1943. 

III. Conflict and conciliation: A tumultuous relationship between the Judiciary and the Legislature

Despite the codification of powers possessed by the judiciary in the Constitution itself (24 Articles are devoted exclusively to the Supreme Court) Gadbois contends that his contemporaries were wrong to proclaim it as the most powerful in the world. According to him a wide jurisdiction does not equal unquestionable power, an observation borne out by the exclusion of the due process clause in Article 21 and the bar on judicial review of the compensation given by the government when it acquired private property (the first has been diluted by a progressive reading of the statute by the court in subsequent cases[1] while the second has been removed Completely).

The final chapters of the book outline the tussle between the two pillars of the state; the legislature and the judiciary, with the constitution acting as the backdrop. The contrasting attitude of the two organs is best demonstrated through the speeches of their respective chiefs. Prime Minister Nehru denounces private property as an abomination, while Chief Justice Bose maintains that “public good is possible only when private rights are protected by municipal law.” These quotes encapsulate the confrontation between an omniscient government restless for social engineering and a court mindful of the citizens’ rights, yet which waivers in its commitment to protect them.

Initially the court seems unduly deferential towards legislative intent(especially in preventive detention cases like AK Gopalan[2]. It does however resolutely defend individual rights, when it comes to expropriation of property. This frustrates the welfare agenda of the ruling party which resorts to precluding judicial review of Article 31 [A] and 31[B]. The logjam ensues also because of how the court parses the legislation. It takes a rigid originalist stance by privileging the founders’ vision, disregarding statements of objects and reasons accompanying the laws, to better understand their broader import. This leads to an unpredictable jurisprudence as discerned from the application of original-ism to Article 21(dangerous for civil liberties) and Article 19(expansive hence problematic for the executive). The subtext to these chapters is the uncovering of the nature of the constitution itself and the powers(and responsibilities) it confers on individual parts of the state. 

The legitimacy of the court is also brought into the docks. As the interpreter of the constitution it assumes the risk of falling afoul of Indian ethos(as purportedly represented by the Legislature). Is this a perennially existential dilemma for the court? These questions are left unanswered for it remains unclear (even to this day) if the court construes itself as the apex judiciary of India, or as the apex Indian court? A resolution is necessary for the former values fidelity to a code that goes beyond parochial nationalism, the latter refers to a strict adherence to the cultural mores unique to a society. 

As for the judges, those who initially housed the Supreme Court hadn’t participated in the freedom struggle. Hence they were deemed agreeable to the application of legal principles laid down by their colonial forebears. While their civility granted them(a perception that persists even to this day) a degree of respect amongst the political leaders, they were not considered to be acute judges of the people’s aspirations. A tantalizing question ensued: Are judges doomed(for eternity) to be deemed as impediments to a constructive national project? 

Amidst this struggle for supremacy, Gadbois also manages to expound on some grounds of reconciliation. He alludes to the harmonious co-existence between Part III and Part IV of the constitution(Fundamental Rights and Directive Principles of State Policy). While Part III has primacy(over Part IV), and the latter is not justiciable, he contends that the court can invoke Part IV for realizing Part III hence facilitating collaboration between the judiciary and the legislature(and by extension the executive).How this interpretative tool would later empower the judiciary to usurp the legislature’s (and by extension the executive’s) mandate, to crown itself as the sole custodian of the public welfare(through measures like Public Interest Litigation) could not have been foreseen by Gadbois. 

IV. A prelude to reform 

The book is a veritable repository of problems plaguing the court. A couple are discussed in detail(with possible rectifications) below. 

First is reducing undue exclusivity of the court. The Supreme Court is deemed to have failed in formulating a uniform policy for admitting matters through special leave to appeal under Article 136 of the constitution. Subjective metrics like impact on a large section of society or including a substantial question of law for admittance not being conducive for consistent application. This tethers admittance to the whims of individual judges, which makes the knowledge about their proclivities a prized possession for the litigants. Since the advocates interact regularly with them, they amass significant power by virtue of being the sole possessors of this informal information. 

This puts them in a privileged position while conferring on them a responsibility to keep the judiciary in check. However, there isn’t much incentive for the litigators to pursue reform[3] and push for standardization of the court’s procedures because it can lead to a loss of pre-eminence (and remuneration). In any case more research needs to be undertaken with respect to how the  bar does and can better regulate the functioning of the bench. 

Second is the question of ‘Quotas’ in judicial selections. Gadbois had described the judges of the incipient Supreme Court as mostly upper-caste Hindu males. Little has changed since then. 

Considering they adjudicate over matters pertaining to affirmative action(reservations for economically or socially underprivileged sections) shouldn’t the court respect the principle of positive discrimination while selecting its own members? Or is legal acumen the only barometer of a jurist’s capabilities?If judging isn’t entirely apolitical (as evinced from the book) then shouldn’t diverse viewpoints echo in the court’s chambers? Or is it necessary to insulate the judiciary from communal considerations?These are questions which call for immediate introspection, especially in light of the recent order passed by the court modifying the scope of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989. 

V. The coda 

Gadbois’ treatise is a testament to both the resilience of our polity and the flexibility of judicial doctrine. It is a fascinating introduction to how the court navigates the former by relying on the latter. It exhorts us citizens to cerebrally engage with our supreme watchdog so that we can fortify our democracy by bettering its guard. In The Nine[3], a comprehensive chronicle of the US Supreme Court, Jeffrey Toobin mentions how steps were used to elevate the appearance of that court, which inspired awe amongst all visitors. In stark contrast our Supreme Court’s building wasn’t universally lauded, with some calling it a‘’cubistic structure devoid of any majesty”. For Gadbois it was a marvelous first impression which led him to construct this monumental thesis which will forever remain the ledger for Indians to access its august chambers. 

The author Mr. Rahul Mohan is a student of Campus Law Centre, University of Delhi.



Gun Island: History, Myth and a Non-linear conception of time

The word history is derived from the Latin word historia which means account of past events. History can be seen as a systematic written account comprising of a chronological record of past events, circumstances, and facts. But the word history could also imply a story or a narrative of events connected with a real or imaginary object or a person. These two meanings of history pervade the novel Gun Island by Amitav Ghosh.

Fiction writers generally approach the historical past from the latter perspective. They try to sort out historical materials with an attempt to translate and recast them in an imaginary milieu. This is a process of defamiliarization and realigning documentary data into various kinds of matrices. In this work, the protagonist Dinanath Dutta is a dealer in rare books and other Asian antiquities. Placing the protagonist in such an occupation helps Ghosh to impart innumerable historical facts but he uses these facts to further a narrative that is rich in mythical and supernatural elements. The novel itself is a journey of finding historical basis to the myth of gun merchant. He demonstrates the joint power of imagination and discovery.

American Historian Hayden White in his essay “Metahistory: the historical Imagination In 19th century” argued that ‘historiography cannot be objective or truly scientific in itself, unaffected by anything. Historical writing has strong reliance on narrative for meaning. He proposed that history was above all writing, that its form was vital to its content. The novel, Gun Island has an abundance of historical facts and scientific truths such as climate change, but the form and structure of the narrative resemble a myth.

 It is filled with supernatural elements and prophetic visions of the future. The protagonist Deen, seems to be haunted and chased by the ghost of a gun merchant and Mansa Devi. Characters such as Tipu and Rafi seems to be undergoing the cycles of rebirth. Character of Cinta acts as a wise sage and guide to our hero Deen in finding the truth behind the story of Gun merchant. She tells Deen that the strange depression he is feeling is a kind of awakening and a gift. The novel ends with the occurrence of a miracle and the sacrifice of an innocent. The Blue boat is rescued but the price is Cinta’s life. However, Cinta seems to have gained otherworldly wisdom during her ‘final’ moments, she says “time itself is in ecstasy. I had never thought I would witness this joy with my own eyes…”. Gisa her sister says that “Cinta’s gone” highlighting the western perspective of considering death as a final departure. The novel seems to refute this notion by presenting us with the ghostly presence of Cinta’s daughter Lucia, gun merchant and Mansa Devi.

Ghosh seems to envision time not as chronological and linear but cyclical and spiral. In that sense, he showcases an Indian understanding of time and history. It seems to flow in circular cycles instead of a linear structure. Ghosh compares the word “Bhuta” which, generally, means the term ghost to its other denotations- past, as well as, existing presence. It highlights the tendency that past constantly shows it’s vestiges in present times. This can be seen in the lines- “But if the same word means both existing and existed wouldn’t it mean that the past wasn’t past? That the past was present in the present?” The novel presents a fluid and intermingled sense of time and history, where the time is not alienated from each other but flows together.

In contrast to this, if one considers Biblical creation myth in the book of Genesis as a window in the western conception of history, it shows that the narrative of the myth starts at the beginning and ends with a view of ‘end of time’-an apocalypse. This conception of history provides a linear structure of time with a beginning, middle and a definitive end. In the novel, at the conference in L.A. a speaker talks about climate change and apocalypse. He refers to apocalypse as the end of the world scenario and says -“It has fallen to us, centuries later, to bear witness to the last turn of the wheel.”

The western perspective seems to expect a final end. Indian perspective seems to highlight the repetitive nature of struggles for survival against time. In The Hungry Tide, published in 2004, Ghosh writes – “It is common knowledge that almost every island in the tide country has been inhabited at some time or another. But to look at them you would never know: the speciality of mangroves is that they do not merely recolonise land; they erase time. Every generation creates its own population of ghosts.”

There is a constant struggle with time and trying to create and sustain your memory in history. In Gun Island, past is referred to as a beast that haunts the present times. “it was memory itself…it was much older than me, some submerged aspect of time that had been brought suddenly to life”. He calls this memory of the past as “something fearsome, venomous and overwhelmingly powerful.”

This intense metaphor is used in the novel as a cautionary statement. The actions of the past will have consequences in the future and one should learn from their history.  However, history as a collection of factual data seems inadequate in dealing with the changing times. For example, in the novel, Deen attends a conference at a museum in L.A. and the opening speaker talks about ‘Climate and Apocalypse in the 17th century’ the reaction of the audience is that of disdain and disbelief. However immediately wildfires break out nearby questioning this sense of complacency in the world. The reaction of the audience in the museum is in stark contrast to the panic of the people of 17th century who were witnessing climate change. Historical facts about catastrophic events are no longer enough to invoke action from people. Fiction and imagination are required to weave these facts into stories. Ghosh echoes this sentiment in the novel “Only through stories can invisible or inarticulate or silent speak to us; it is they who allow the past to reach out to us”.

Edward Casey in his essay ‘Imagination and repetition in Literature’ writes- “imagination can concern itself with possibilities which stem from the past, and repetition can direct itself into the future, and both acts take place in the present.” Amitav Ghosh in his novel gun Island tries to render the unknown future and the devastating past in the present.
‌In an interview with post magazine Ghosh said that “A standard trope when writing about the unknown we face today is to project it into the future. But we can’t see into the future, all we can look to is our human past, to earlier periods of catastro­phic change. If we’re going to pin all our hopes on the future, then we must also look to our past.”He again highlights this sentiment in the novel “from the beginning salvation comes” and “the possibility of deliverance lies not in the future but in the past.” This highlights that past doesn’t need to be seen in disjoint with the present or the future. It needs to be one connective cohesive flow. The stories that concern with the present and future, should include past, not as factual history or a background setting but rather as an invigorating narrative presence.

WORKS CITED:

Casey, Edward. ‘Imagination and repetition in literature: A Reassessment.’ Yale French studies (1975)

Ghosh, Amitav. ‘Gun Island’ (2019)

Ghosh, Amitav. ‘The Hungry Tide’ (2004)

White, Hayden. ‘Fictions of Factual Representation’. Columbia University press (1976)

Lawyers Vs Delhi Police: We are failing our citizens

It’s not easy being an ordinary citizen. 

One is up against all kinds of odds: societal, economic, personal, and political. She, nevertheless, carries on, every day, with a sense of belief that she is roofed under a system that is pillared by law, order, and a community of good people: bound by the promise of their statutes.

In dark and difficult times, she converses, with the ideals of the state. It fills her heart with hope and capacitates her to put a strong foot forward towards tomorrow. And, in this way, through her faith, she keeps the idea and the necessity of a state alive.

A state is, for, after all, a thought: a belief system that is kept alive through the institutions running in its name.

In Delhi— owing to a tug of war between its carriers—the idea of that ideal state stands disrobed. Its skin of romanticism peeled off and its mass of myths cut to pieces. A sight of oddment, now remains, bare, for everyone to see whilst it attempts to unsuccessfully cover its vulnerabilities.

It originally started as a parking dispute. And, soon, the national capital was a conflict zone of lawyers and policemen, up in arms against each other: Shots were fired. Blood was spilt. Arson followed. Chaos was granted a realm. In no time, the protectors became protestors seeking protection from the upholders of the law, who in turn, were out pummelling the rule of law to bits and pieces by their fists and (sometimes) even kicks.

It was all before the wide eyes of an ordinary citizen. She switched through news-channels and scrolled through the social-media as the foreverness of her belief stood beaten, bruised and bloodied. It felt like one of those times where anything that could go wrong did go wrong.

The police were claiming to have an unimaginable power, only and unfortunately, estopped by its discipline. The lawyers, on the other hand, confident of having the law by their side, were roaming around, beating up people, like an unorganised horde of a feral kind.

The police had forgotten that it has the power, that it claims to have, only because it’s disciplined and will not such have such faculty, in the absence of a rigour. The lawyers had forgotten that no authority— so far— had given them a license to act as a militia around what was still known as a court of law. The police refused to acknowledge that restraint lies at the very heart of their legitimate power. The lawyers refused to accept that the strength that they have today emanates from goodwill built by their forefathers through decades of demonstrated gravitas, rectitude and honour.

It was a hideous sight for a citizen to see one arm of the criminal justice administration take on the other. In those hours of madness, we forgot who we were in the system: parts— bhagas. And, in vain, tried to become the system in ourselves: the whole— bhaga-van.

Now, in hindsight, we must pause, re-think and look around. If wrongs have happened, we must let the inquiries follow. The guilty shall be brought to book. We have to have faith in the judicial system we have so carefully built with our sweat, blood, and centuries of sacrifice. We cannot allow ephemeral feelings such as vanity to guide our course. A common citizen’s faith in a state, its institutions and its machinery is essential– not only for him, but even more so for the state itself to survive and sustain. These are trying times. And, there is a great deal of difficulty in being good. However, as the motto of the Supreme Court of India claims— we must believe: Yato Dharmastato Jayaḥ, where there is righteousness, there is victory!

Let us not fail our people. Let us not fail their beliefs. Those pillars that hold our roof can’t fall. That is our common dream. This is our home. Let us promise to hold it together: today, tomorrow and forever!

[Chandan Karmhe is a Campus Law Centre law graduate, Chartered Accountant and an IIM-Ahmedabad alumnus]

THE UNTOUCHABILITY ANGLE TO SABARIMALA

Entry of women aged between ten and fifty into the hilly shrine at Sabarimala is one of the most discussed issues in the recent times.  Through this piece, I am trying to deal with only one aspect of that case, which was largely ignored.   It an issue relating to the interpretation of the word “untouchability”, occurring in Article 17 of the Constitution. 

 The practice of exclusion based on menstruation constitutes a form of untouchability and is prohibited by Article 17 of the Constitution, argued Ms.Indira Jaising, senior counsel for parties who want women entry.  This argument finds acceptance in one Judge’s (Dr.J.D.Y.Chandrachud) judgment.  Another Judge, J. Indu Malhotra dissented on this issue.[1]      

Unlike many other places of worship, Sabarimala is a place where not only Hindus, but people belonging to any other religion is also permitted to go.  There is no bar on the basis of religion, caste, place of birth.  The only restriction is for women of menstruating age group.  Therefore, can it be said that there is a form of untouchability at Sabarimala?  Many people wondered! 

Often, common understanding of an issue and a legal definition is slightly different.  What misses the eyes of a many a commoner is the legal basis for this reasoning.  This take us back to the old but famous conversation between King James I of England and Chief Justice Coke.  To the query of King ‘whether the King is not aware of the “reasons” behind laws, just like Judges’, Chief Justice Coke replied : “..true that it was that God had endowed His Majesty with excellent sense and endowments of nature; but His Majesty was not learned in the laws of his realm of England .. are not to be decided by natural reason but by the artificial reason”.  Chief Justice then explained: “law is an act which requires long study and experience, before that a man can attain to the cognizance of it that the law was the golden met-wand and measure to try the causes of the subject.”

Judges of the highest Court adopt certain tools of interpretation while dealing with Constitutional provisions.  Reference to the Constituent Assembly Debates (CAD) is one.  Justice Indu Malhotra refers to CAD to hold that untouchability was practised against Harijans or people from depressed classes, and not women. 

Dr.Justice D.Y.Chandrachud also refers to CAD but finds something more deep. There was a proposal by member of the Constituent Assembly, Naziruddin Ahmad, for restricting ‘untouchability’ to its religious and caste-based manifestations only, which got rejected by the Assembly.  Then there was a specific query from one member, Professor K T Shah.  After referring to certain practices among certain communities, Prof.Shah asked the House.  “We all know that at certain periods women are regarded as untouchables. Is that supposed to be, will it be regarded as an offence under this article?”  Dr.Ambedkar did not give a reply to this query. 

The refusal of the Constituent Assembly to provide any definite meaning to ‘untouchability’ (despite specific amendments and proposals voicing the need for a definition) indicates that the framers did not wish to make the term restrictive, holds Justice Chandrachud. 

How then menstrual taboo, akin to untouchability?

Justice Chandrachud finds that the basis of untouchability is notions of purity and pollution.   He then records: “Any form of stigmatisation which leads to social exclusion is violative of human dignity and would constitute a form of “untouchability”… The guarantee against social exclusion based on notions of “purity and pollution” is an acknowledgment of the “inalienable dignity of every individual”.

This is how the learned Judge arrives at the finding that the exclusionary practice adopted at Sabarimala is a form of untouchability. 

It may be noted that the Constitution forbids practice of untouchability in ‘any form’.  Word untouchability is not defined anywhere in the Constitution. 

During the course of hearing review petitions, senior counsel Mr. K. Parasaran argued that the term “Untouchability” is in inverted commas because it is nomen juris. It was argued that it should be understood as was in its historical context, and the expansion of its application to menstruating women by Dr.Justice D.Y. Chandrachud is an error apparent on the face of it, and should be reviewed.

In reply Ms.Indira Jaising submitted that the term “Untouchability” has been put in inverted commas because the word did not exist in the English language prior to 1918. Referring  to ‘Untouchability and the Law’ by Marc Galanter[2], and ‘Geneologies of the Dalit Political: The transformation of Acchut from Untouched to Untouchable in early Twentieth Century North India’ by Ramnarayan Rawat[3], she submitted that the English translation of the Sanskrit word “Acchut” to “untouchability” is a verb that co-relates to the practice of treating someone as “Acchut.” The creation of an English word for this practice is the reason for the inverted commas. The word untouchability is a verb and its practice has been abolished, regardless of the caste to which a person belongs. The fact that a purification ceremony was conducted after the entry of women aged between 10-50, squarely makes it an act of untouchability, she submitted.

The debate on untouchability has therefore reached a new chapter on being perceived through a prism of women rights. Its presence in the Sabarimala issue and the Judgment is indeed a stepping stone in developing a comprehensive understanding of untouchability in times to come

By Prashant Padmanabhan,

Advocate on Record, Supreme Court.

*The author has assisted Ms.Indira Jaising in the Applications opposing Review Petitions in Sabarimala case, before the Supreme Court. 


[1] https://www.sci.gov.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdf

[2] EPW vol.4 issue 1-2, Jan 1969

[3] https://journals.sagepub.com/doi/abs/10.1177/0019464615588421

SIMULTANEOUS ELECTIONS- A BANE FOR ELECTORAL PROCESS IN INDIA

The idea of ‘One nation, One poll’ was brought to the centre stage in the 2014’s election manifesto of Bharatiya Janata Party and since then has been widely debated and discussed vigorously on multiple forums including Election Commission of India, 170th Report of Law Commission, NITI Aayog and 79th Report of Parliamentary Standing Committee on Public Grievances, Law and Justice on the feasibility of holding simultaneous elections for Lok Sabha and State Legislative Assemblies. The idea of simultaneous elections was primarily propagated on the notion that it will result in savings in terms of money, manpower and other resources spent on election and will lead to better governance and development of the nation. However, the proposal is not only impractical and politically motivated but also suffers from the fallacy of ‘argument by analogy’. A similar calling for simultaneous polls was also put forth by former President Pranab Mukherjee while in office, however after retirement he also termed the implementation of idea as difficult and not symbolic of a ‘representative democracy’.

AN OLD PRACTICE WITH A NEW FACE

The practice of simultaneous elections is not a new concept and rather was in operation between the period from 1952 to 1967. However, the practice  was disrupted by failure of assembly before the end of the term of elected party or failure of constitutional machinery. The implementation of this idea would  require alignment of the terms of elected parties in State and such a practice would only violate the Constitutional right of an elected party to serve for five years. The move is highly flawed and will require constitutional amendments as recommended by the Law Commission that will impact the federal structure of the nation which forms part of the basic structure of the Constitution. A solution presented by the Report of the Standing Committee is in the form of ‘constructive no-confidence motion. According to this remedy a ‘no-confidence’ motion will be passed only when there is confidence in alternate govt and not in the absence of such confidence.

THREAT TO FEDERALISM

It is indeed ironic that a nation known for its diversity and pluralistic nature, the practice will only put issues involving federalism at a backseat. Studies by Association for Democratic Reforms (ADR) and Centre for the Study of Developing Societies (CSDS) have put forward verifiable and reliable data to highlight the fact that simultaneous elections might impact voting behavior in a manner that would benefit larger national parties thus adversely affecting the regional parties. A study by CSDS of 31 Assembly elections that were held along with the Lok Sabha elections from 1989 to 2014 show that in 24 instances/elections the major political parties polled almost a similar proportion of votes for both the Assembly and the Lok Sabha, while only in seven instances was the choice of voters somewhat different, thereby shrinking the choice of the electorate. 

MODEL CODE OF CONDUCT MIRAGE

The argument put forth by the political parties that model code of conduct followed due to frequent elections interrupts the developmental process is highly political as the Election Commission has time and again asked the parties that if necessary they can work for the execution of schemes however should not publicise it. Moreover it only bars from initiating new schemes not working in the direction of old schemes already running. The Report of the Standing Committee projects the successful working of simultaneous elections in other countries like South Africa, Belgium and Sweden however, in this analogy it fails to recognise that these countries follow proportional representation system for the election of candidates unlike first past the post system followed in India. 

CONCLUSION

There is no doubt that democracy is an expensive system compared to totalitarian regimes or monarchies. Renewal of mandate costs money, requires manpower and restricts public discourse on other issues. On the contrary, democracy is also the only system which makes political leaders answerable to the lowest common denominator. As stated by former Chief Election Commissioner, Mr. S Y Quraishi,”frequent elections in India also ensure accountability of political parties in contrast to the usual tendency of political parties where they disappear for five years once voted to power.” Thus, on account of a choice between between democracy and expenditure, it is the spirit democracy which has to trump pecuniary expenses. 

[Mallika Agarwal is a Final year student of Campus Law Centre, University of Delhi and the winner of Confero 2019, Campus Law Centre’s National Debate Competition on the topic ‘Simultaneous elections in India, a boon or a bane’]

When Judicial Activism turns into Judicial Overreach

There is a very thin line of demarcation between Judicial Activism and Judicial Overreach. While Judicial Activism is crucial and beneficial for the society, Judicial Overreach has many perverse implications. In India, when the other pillars of democracy have been unjustifiable in performing their due functioning, the Judiciary has stepped in to do justice. The Constitution of India mandates the Judiciary to keep the legislature and executive in control in order to preserve democratic values.

How it Started:

Judicial activism in India started in the late 70s when in 1979 a case was filed in the Supreme Court which is famously known as Hussainara Khatoon case. For the first time in the history of legal system of the country, it was observed and Justice Bhagwati said – ‘It is not necessary that only the aggrieved should approach the court, but anyone for welfare of society in large can approach.’ In SP Gupta case, the term Public Interest Litigation (PIL) was coined which in the current times has become synonymous with the Judicial Activism. Reflecting on the facts of the case- it was pertaining to the condition of 40, 000 prisoners in a jail of Bihar. Other instances of it which create a benchmark are Vishakha case and MC Mehta case making Judicial Activism a means to get justice.

Need of the Hour:

When the legislature and executive fail to deliver its governance, the court interferes to fix it. It is when all the government institutions are failing, it is on the judiciary to step in, in order to deliver justice. In Keshvanand Bharti case, the Supreme Court reflected on the basic structure of the Constitution. It provides the line which shows the way where there has to be the intervention of the Judiciary in order to render justice and preserve the supreme constitutional spirit.

In the current scenario, we see the Supreme Court using its power in determining the height of Govindas in Dahi Handi case, intruding into the job of executive and legislature in the appointment of Lokayukt, reforming BCCI, cancelling the 2G licenses, shutting down liquor shops near highways, and more. There have been vast deviations from it reflecting its misuse.

Violating the Principle of Doctrine of Separation of Powers:

If the legislature or executive fails to perform its duty then the judiciary is ought to interfere. Can this excuse be used in the opposite scenario? Can the legislature or executive interfere when the judiciary fails to perform its duty? 3.3 crore cases pending in courts including 43 lakhs in HC and 58, 000 in SC according to National Judicial Data grid. Can these grounds be used to interfere in judicial matters and will it not be the violation of constitutional spirit then? We saw the same when NJAC was held unconstitutional by the Court citing it as a legislative interference. The Constitution has provided ways for checks and balances which are enough to keep the institutions in check.

Conclusion:

Thus, it can be summarized in the following points:

• Interference of any pillar of democracy in the matters of one other is against the doctrine of Separation of Power.

• An unelected court should resist in interfering in the matters of democratically elected legislature.

• There is always inefficiency in governments but it cannot be used as an excuse to intrude into the powers of government as it can lead to severe implications.

A truly democratic state can only be maintained when each of such institution does their job with punctuality. Overreach can only lead to anarchy and chaos which would be against the democratic principle of our constitution. The job of the judiciary is to interpret the constitution and to preserve the constitutional spirit and not to become a Constitution itself.