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Legitimacy of the basic structure

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By Suhrith Parthasarathy

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.

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.

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 we might 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.

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.


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Opinion

The issue of love in the Mathnavi of Rumi

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By Amir Suhail Wani

Love is the greatest mystery of life and is often identified by life itself. It has been right there from the inception of philosophy and still stands as an indescribable verity of the cosmos. The stretched and extensive discussions on love in Plato’s “Phaedrus” and “Symposium” reflect the gravity and antiquity of this theme. It propagated radially from the Greeks and influenced all schools of thought, including Muslim philosopher, Ibn I Sina’s theory of life, as a movement towards ultimate goodness, beauty and truth, is in fact a reproduction of the Platonic theory of love. This love is same which Rumi identifies as “Ishq”, and which he describes as the “Élan Vital” of the universe. If there is something in Mathnavi where Rumi is totally ultra-rational and where all equipment of analysis clove asunder, it is Rumi’s commentary on love that he expresses with lyrical fervour. The philosophical and pragmatic dimensions added to love by Rumi have increased in depth and width manifold. Rumi’s vision of love is a universal and a humanitarian one. He does not preach that love which invokes carnality and material pursuits in man. On the contrary, he believes that lust is poisonous for love. He says:

“Ie na ishq ast ie ki darr mardam bood
Ie fasaad az khourdan gundam bood”
“Do not anticipate the lust and desirous intoxication caused by it
as Ishq, this is not the love I am talking about”.

 

Rumi’s concept of love, though targeted at beauty like that of Plato, is still different from it. Rumi believes that it is not logical to develop love for temporal and ordinary things and to get enchanted by their beauty. Rumi says that one should love the source and origin of this beauty, and which is more beautiful than his own reflection. He says that eternal beauty belongs to God and this universe is only a passing reflection of the eternal beauty of God. Another important and debatable facet of Rumi’s concept of love is rooted in his concept of spiritual evolution and origin of the human ego. Rumi opines that the source of all souls is God (qulu ruh min amri rabbi), and by some transcendental process, these souls separated from their focus. Egress and separation raised restlessness in souls to return to their origin, the God. Every soul feels a continual attraction towards its source (Also called “Ruh ul Arwah”) and their similitude is like that of a reed that has been cut from a tree. Rumi says that this attraction of egos towards super ego is a super sensuous phenomenon, whose exegesis is not possible. But this attraction is screened by material constraints like our body, the universe and matter. In the depths, every atom is conscious of its origin and every creature is ever dissatisfied and wants to live a higher life.

Maulana says that love is a human will to live a higher life, and simultaneously love is the guide that leads from lover to higher forms of life. The theme of love as it stands in relation to human ego and its role in evolution emerges as a prominent theme in the Mathnavi. Maulana says:
“Giz nabood-e- ishq hasti ki bude

Ki zarra na bartaw wa taw ki shudde”

If there had not been love, how should there have been existence?
How should bread have attached to you and become (assimilated to you)”

At other place he explanatorily summarizes his philosophy of love (As a craving to live higher life) as:

I died as a mineral and became a plant,
I died as plant and rose to animal,
I died as animal and I was Man.
Why should I fear? When was I less by dying?
Yet once more I shall die as Man, to soar
with angels blessed; but even from angelhood
I must pass on: all except God doth perish.
When I have sacrificed my angel-soul,
I shall become what no mind ever conceived.

This evolution is enabled only by means of love and only love is what can initiate and catalyse it. Rumi while contrasting love with logic gives higher status to love. He believes that love binds and assimilates the heterogeneous, and makes it homogeneous with itself, whereas reason from its very nature is dualistic and incapable to comprehend the unitary essence of existence. In Rumi’s view, the purpose of life is the realization of God, and the medium for this realization is love.

Rumi goes ahead and says, love is the “prime mover” and all motion is governed by love. This fact must not be taken cursorily, but deserves understanding and appreciation. Even modern physics has reached the same conclusion, though in a different way. It has been revealed that all the phenomenon of cosmos ranging from quarks to the motion of galaxies is dictated by some force.

This force can differ in its nature and details, but its main function is one– to bind the system, and this binding is what Rumi identifies as love. One of the reasons that Moulana’s words and poetry are so alive, even after 800 years and will continue to be so- is that the authenticity of them is protected and not compromised- it is because they transmit the message of the Divine, which takes man to God.

The image of Adam and Iblis has been thoughtfully reinterpreted by Rumi in context of his philosophy of love. Rumi sees Adam as a personification of love and Iblis as a symbol of mere reason and pure rationalism. It is also interesting to note that as Rumi’s concept of Ruh bears resemblance with “Leibnitz’s monads”, similarly there runs an intricate parallelism between his concept of “Ishq” with some philosophers of post-Kantian period.

The commonalities between Ishq and “Élan vital” of Bergson cannot be bypassed easily. Likewise the similarities between Rumi and Schelling, as well as Rumi and Schopenhauer, demand deeper understanding. Thus it turns out that Rumi was neither the first nor the last to speak of the issue of love. But he gave its reinterpretation based on his personal mystic experience. He enriched the pre-existing notions of love, and introduced some vital modifications. The lyrical and rambling poetry that he wrote in the ecstasy of love, truly established him as a distinguished figure, that later came to be revered on all continents of earth. His message of love teaches us selflessness, compassion, self-consciousness, God consciousness and truth consciousness. Moreover, it takes us out of the narrow domain of logic and enables us to fly to the zenith in the republic of Rumi, where angels are singing and souls are whirling.

(The author is a freelance columnist with bachelors in Electrical Engineering and a student of comparative studies with special interests in Iqbaliyat & mystic thought. He contributes a weekly column for this newspaper that appears every Monday. He can be reached at: [email protected])

 

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Opinion

WOLVES ON PROWL

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By Shabbir Aariz

“A nation of sheep will soon have a government of wolves.” This was in-boxed by a friend to me the other day. This quote of Edward R. Murrow, born in the year 1908, died in 1965. Edward was an American broadcast journalist and war correspondent in world war 2nd for CBS. Whatever, I felt the quote ominous for the elections to 17th Lok Sabha are round the corner, hopefully to be held between April and May 2019 and expected are also the legislative assembly elections in Andhra Pradesh, Arunachal Pradesh, Odisha, Sikkim and Jammu and Kashmir simultaneously. Therefore, the political wrestlers have started to flex their muscle and obviously someone will make it to the parliament as has been happening in the elections hitherto. But the critical question is how the new dispensation shall deal with the challenges they are going to be faced with.

In the year 2014, when Modi was elected to power, while criticizing Congress for its policies, promised a transformational path to rapid development but that was not to be so. He finds himself in the same situation, which he put congress in. He is seen wanting on all fronts. There is increase in unemployment, farmers continue to suffer under debts and commit suicide, increase in crime, particularly against women with shocking statistics of rape while some put the percentage of unreported rapes between 50% to 90% and India ranks in top ten countries where every thirty minute, a rape is reported. And the centre of attention have been two statues, one of Shivaji costing thirty six hundred crores and of Sardar Patel raised at a cost of two thousand five hundred and twenty five crores. Investors are also seeking exit and an investment of over thirty thousand crores has already gone out of India. Foreign investors are feeling uncomfortable and find US a better place instead. So the overall trajectory is not an upward. Worse shocks are received in terms of foreign policy and relation with neighbours in the region. No doubt that with Pakistan, there have always been problems but the policy of the present government towards Pakistan is in complete comma while China has registered its victory and dominance in countries like Nepal, Sri Lanka, Bhutan and Bangladesh. Sri Lanka has handed over its Hambantota port to China in 2017. China built railway and road bridges in Bangladesh and entered Maldevis while India watched. India’s neighbours are roped in by China in its One belt One road scheme. China undoubtedly shall extract a price for all it is doing as nothing is an altruism. India’s position in Afghanistan in no different. So much so that its “best” friend, US stalled import of oil from Iran and weapon from Russia when India staked everything for US. There is complicity in India’s strategic shrinking influence in South Asia and the Indian Ocean region, say the analysts. Modi is “bowing to powerful and bullying the weak.” Within also the picture is grim, gloomy and sad. Hardly anything triumphal, everything dismal.

 

Analysts also ask that how can India be a great power when it is socially divided? Social divide that is patronized by the ruling class which does not stand India in a good stead among the community of nations. Someone really needs to repair the damage that has been caused to the Indian social fabric. Total atmosphere seems to be tense and no right thinking Indian seems at peace. We have all these five years been debating, are we a secular state or a Hindu Rashtra. We have been forced to live in the past while world moved forward. Also amazing is the fact that what BJP hurled on Congress on alleged 2G scam, is hurled back several times multiplied on BJP for controversial Rafale deal/scam.

I will be leaving this write up halfway, if I do not mention Bharat Karnad, a conservative strategist and unforgiving author of “Staggering Forward: Narendra Modi and India’s Global Ambitions”, a 2018 publication. It is a critique of India’s political leadership, bureaucracy, armed forces, policies, system and processes and particularly Prime Minister Modi’s style of diplomacy. Needless to say that Karnad, after the last election was a strong supporter of Modi as had hoped Modi to transform everything crucial to the nation but to his dismay and utter disappointment nothing that he expected happened. Shivshankar Menon, former National Security Advisor says, “expect worse should Modi return to power in 2019. That would further postpone or derail India’s transformation into a strong, prosperous and modern country.”

With all what has been said here-in-above, believing also without any prejudice the same to be true and correct, one needs to keep one’s fingers crossed in the face of the fact of unpredictability of Indian voter and equally the cleverness of the political class. Will there be any change or the present dispensation will continue, remains to be seen. Let anybody be there but necessarily the one with grasp and understanding of the challenges the Indian nation is faced with, within and outside. Meanwhile be aware of wolves as they too are on the prowl. Let us prove Edward R. Murrow wrong.

(A leading lawyers and acclaimed poet, the author can be reached at: [email protected])

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Clueless in Kashmir

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By Pravin Sawhney

The detestable Pulwama blast is not about intelligence failure or the inability of security forces to act upon it, as the government would want us to believe. It is about India lacking capability, capacity and political will for war escalation. And Pakistan being aware of it.

Things were made worse by the 2016 so-called surgical strikes, where India (a) clandestinely hit terrorists’ temporary launch pads rather than Pakistan army posts, and (b) immediately informed Pakistan that it would not escalate matters — an acknowledgment of defunct political will. Instead of furtively building war-withal for strengthening border management, Indian Generals, notwithstanding incessant terror attacks and loss of lives, continue with counter-terror operations and hollow bravado.

 

Moreover, the Modi government’s iron-fist Kashmir policy, with no political balm, helped Pakistan declare its innocence. It was a local Jaish militant and not a Pakistani operative who orchestrated the mayhem. What would be lost in this big picture that Pakistan would tom-tom are the following: the 300-kg explosives came from Pakistan, though their fabrication into an IED would have been done in the Valley (the expert may still be ensconced somewhere enjoying local shelter and hospitality); and the Jaish-released video clip shows the lone perpetrator with M-4 carbine, which is not in the inventory of the Indian Army and paramilitary forces. It came from Pakistan.

Given all this, when government spokespersons talk about revenge, they do not make sense. What exactly are Delhi’s options? Another surgical strike is ruled out since (a) Pakistan would be on better watch, (b) India is still unprepared for an escalation whose dynamics are unpredictable, and (c) with the General Election looming, an escalation would spell political suicide. Yet, expect the Generals to inform the nation that they would strike at a time and place of own choosing, whatever that means.

With military options closed, the Modi government could plug the border’s porosity — the closure of Poonch-Rawalkote and Srinagar-Muzaffarabad bus routes and the foot crossings at Chakothi-Uri, Rawalkot-Poonch, Chihana-Tithwal and Tattapani-Mendhar could be on the cards. Even reduction of Pakistan High Commission staff, if not outright closure of the mission, might happen. Perhaps, the Kartarpur corridor project could be a casualty of the events. Within the Valley, the security forces led by the Army would intensify further hammering by its iron fist.

Such optics, however, would not hide the truth behind the Pulwama attack, which can be summed up in eight crisp points. One, the Indian Army cannot win this war which is fully supported by the Pakistan army. Two, it is time that our Generals realise that military objectives cannot, and should not, be similar to political objectives. Three, the Army should go back to building conventional war-withal — starting with strengthening border management — which is the only way to browbeat Pakistan. Four, internal security should progressively be handed over to the paramilitary and police forces. Five, there is little point in blaming China for its support to Pakistan; Beijing would do exactly what is in its national interest. Five, since the locals’ support has grown overwhelmingly, the ground situation within the Valley is far worse than is admitted. Six, given the increased interoperability between China and Pakistan and the aggressiveness of their foreign policy, external military threats on India’s unsettled borders are rising rapidly. This does not mean that China will start a war with India; what it means is that it would support Pakistan to the hilt politically, with war material and its own non-contact war capabilities. Seven, Delhi should start talks with all Kashmiri stakeholders, including Hurriyat and Shah Faisal, who is trying to harness youth power. And eight, India should talk with Pakistan, not on confidence-building measures, but on conflict resolution.

Consideration of these issues matters because while the Indian Army can perhaps hold the land indefinitely, the same cannot be said about the people. And this is where India has reached the tipping point: the people are no longer afraid of dying. Hence, they appear to be reaching out to Pakistan, instead of the other way around, to fight the Indian state.

Much of the blame for this should go to the Army leadership which misled the political leadership into believing that fencing of borders was good enough protection against a determined adversary. For example, when I asked the then Army Chief, Gen Dalbir Singh, in his customary media interaction in January 2015, how long the Army would continue with internal stability operations, his response was shocking: ‘You should ask the Home Ministry.’ The Chief had aligned his objectives with that of the political leadership. No wonder, he led the 2016 surgical strikes, which sought political rather than military gains; and he handed over the baton to his successor, who, given his vast experience in counter-terror operations, has lifted local tactical operations to the level of operational art. Pulwama is a consequence of all this.

The problem, to be sure, is not the undiminishing number of terrorists or militants in the Valley. The problem is the Pakistan army, which does not think much about Indian Army’s war-fighting capabilities. This needs to be reversed if another Pulwama is to be avoided. This will not be easy since the Generals, unwillingly to give up their risen status, would desist from going back to the barracks. Surely, the Army Chief would not advise the Prime Minister that his force should go back to its primary task.

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