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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

Theology of Presence

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Amir Suhail Wani

“O you who believe! Remember Allah With much remembrance”: Al Quran

To believe is to be in a state of presence. Presence, though not the climax, but is, one of the most cherished states and authentic manifestations of belief. To let God stay far away in the realm of abstraction and beyond-ness not only dilutes the spirit of worship, but it brings under scrutiny the very notion of belief. Religion, in its finest form, aims at invoking in man the spirit of presence, so that the believer may feel and experience the himself in presence of divine and may thus be able to envision a living and existential relationship with his creator and his object of devotion. Religion, even in its basic etymological connotation invokes the sense of “connectedness and attachment” with the object of devotion. It is in the very essence of man that he wants to be greater than what he is and when submitting before the divine, the individual, finite and subjective ego undergoes an existential, psychological and spiritual transformation of unique nature which expands its contours beyond those of physical perimeters. In any act of worship, the subject envisages the object of devotion as infinite and it not only pays homage to that infinite by bowing to it, but it very much desires to expand its own finitude under the radiance of that eternal infinite. This is what is meant by the philosophical benediction that “make me Thou, not an it”.

 

This human urge of finding means of self expansion by submitting before the divine is the greatest expression of human will and self sacrifice. But this spirit is rendered meaningless and antithetical when religion, in its state of decline, reduces to mere theology. In this reductionism, God remains no longer a living reality in the life of believer. He is rather replaced by a set of axioms and statements which fail to stimulate and satisfy the deepest spiritual yearnings of man and this deepest spiritual yearning is nothing but an aspiration to come in living contact with the divine and transcendental. Islam and for that matter most of the religions strongly condemn the deistic notions about God for it leaves absolutely no scope for religious indoctrination and creates an unimaginable void in the realm of Transcendence. It is in response to nuances like these that the notion of presence assumes multifold importance. It is not only prayer but our entire life that demands, by virtue of its spiritual dimension, that we live perpetually under the spell of divine. Thus religions teach us not merely to pray and thus make prayer a part of our life, but they come to turn our entire life into a sort of prayer. This transformation of life itself into prayer is what has best been embodied by Islamic teachings which reiterate time and again that all acts shall be done according to the law/s prescribed by God and at the beginning and end of each of our activity, the name of God shall be invoked. Not only this, the orations we recite at various instances from entering a washroom to starting our prayer are nothing but a beautiful way of making God a perpetual and living presence in our lives. None of our activities shall be divorced from Transcendent and while we are bodily constantly engaged in acts of world and matter, our heads, hearts and souls shall be perpetually turned to the divine. This act of remembering God in world of forgetting paves the way for “discovering God through material representations”. The highest form of this discovery is prayer and within prayer itself it is dua that marks the height of living relationship between God and believer. The purpose of prayer, as has been narrowly appropriated lately is not merely to make God change his mind and to bring our naive desires to fruition. Prayer is in fact the testimony of our living and real time relationship of servitude and dependency on God. Thus when God asserts “If My servants ask you regarding Me, I am indeed Near. I answer the call of those who call upon Me when they call. So let them answer My call and let them believe in believe in Me–in order that they be truly guided.”, he makes us understand in most emphatic and explicit way that he is very much existentially related to us and responds to our prayers. This response to prayer shall not be seen as the fulfilment of our prayers in material realm (which is true on its own), but it shall invoke in us the existential quest and inspire us to awaken our slumbering spiritual sensibility so that we may truly feel that God is indeed responding to us as our creator and as an object truly worthy of our devotion and worship.

This notion of presence has been subjected to double irony. The religious centric people lost sight of this appeal and dedicated their energies in confining and codifying God in their formulae of logical atomism. They rigidly tried to fix God in their self made definitions made out of untenable language as if trying to fit a square peg in a round hole. While as the role of this intellectual cum theological process can’t be belittled, but their overemphasis on making God comply to their abstractions and creating an unsurpassable chasm between the creator and creation surely set them on too rigid a path. The aftermath of this theorization of God not only created uncompromising hostility among different religions, but within the same religion it gave birth to unending clashes, unforseen intolerance and created such shameful examples that served the purpose of latter day anti religious forces. The second threat, and that is more dangerous, to this “theology of presence” has come from movements like new age spirituality, occult practices and pseudo spiritual shopping malls. Whereas traditional religion and traditional metaphysics taught us to see this world as a reflection and reverberation of transcendental realm, the new age spirituality has tragically represented the divine realm as an “extended expression” of human realm and this immanent universe. This has been sort of shifting the frame of reference and with this shifting of frames, the meaning of spirituality and metaphysics is inverted on its head. This misplaced mysticism and consumerist spirituality is far dangerous than no spirituality at all. In absence of spirituality, one may set out to discover the genuine and true spiritual traditions, but the presence of fake and pseudo spirituality creates a halo effect around man and his genuine thirst and quest is buried under the garb of this “materialistic spirituality”.

There are no palatable solutions to this malice that has invaded our religious obligation of perpetual presence and taught us to be satisfied with rituals without knowing their meaning. What one can do is to read, if one can, the religious scriptures and try to get to the roots of these scriptures. Look out for commonalities among scriptures and try to make a sense out of these commonalities. Another suggestion is to read the authors like Rene Guneon, Frithjof Schoun, Martin Lings, William Chittick and others of their class. What is special about these authors is that they speak about traditional metaphysics in contemporary idiom with an insight that is both inspiring as well as awakening. Finally we must note and note it seriously that life is not a profane activity sprinkled with events of sacred prayers, rather life is sacred as a whole and the existential realisation of this axiom is fundamental postulate on which all religions stand.

(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: amirkas2016@gmail.com)

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Kathua verdict: fact, fable and fiction

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Shabbir Aariz                                   

Finally some relief has been accorded to the family of the victim, Asifa by the trial judge Mr Tejwinder Singh by convicting and punishing the guilty. But it is too little if not too late. The investigating agency has undoubtedly done a commendable job in piecing together the evidence against the odds and succeeded in obtaining conviction for criminal conspiracy, gang rape, poisoning and murder of 8year old Asifa on 17th of January 2018 in Rasana village near Kathua in Jammu. Rape is the fourth most common crime against women in India. The National Crime Records Bureau of India suggests a reported rape rate of 2 per 100,000 people, much lower than reported rape incidence rate in the local Indian media. However, Times of India reported the data by National Crime Records Bureau unveiling that 93 women are being raped in India every day. Every year 7,200 minors are raped as the statistics suggest without unreported ones. Rape is, surprisingly a weapon of punishment in India. In 2014, in Jharkhand village elders ordered the rape of a 14year old. The husband of the woman who was assaulted sexually was told to carry out the rape. As the woman’s husband dragged the girl to a nearby forest, villagers only looked on. Earlier West Bengal village reportedly ordered the gang rape of a 20 year old woman for falling in love with a man from another community. Even in case of Kathua, two BJP ministers stood in favor of the accused. Sexual crimes being committed with impunity not even sparing foreign tourists led to issuance of rape advisories like women travelling should exercise caution when travelling in India even if they are travelling in a group, avoid hailing taxis from streets or using public transport at night. India feels like it is going through an upsurge of sexual violence against children and after several incidents including Asifa’s, received widespread media attention and triggered public protest. The Prime Minister condemned it and UN Secretary General, Antonio Guiterres said “guilty must be held responsible” describing the incident “horrific”. This led the Government of India to reform its penal code for crimes of rape and sexual assault. As such India’s cabinet approved the introduction of death penalty for those who rape children. The executive order was cleared at a special cabinet meeting chaired by Prime Minister Modi. It allowed capital punishment for anyone convicted of raping children under the age of 12. India’s poor record of dealing with sexual violence came to fore after 2012 gang rape and murder of a student on a Delhi bus. The four men involved were sentenced to death. The Supreme Court maintained the death sentence of the convicts; Akshay Thakur, Vinay Sharma, Pawan Gupta and Mukesh. Rejecting their appeal Justice R Banumathi said the men committed “a barbaric crime” that had “shaken society’s conscience”. It is worthwhile to mention that the death penalty to the said persons was given in the year 2013 while as the executive ordinance came in April 2018 after Asifa’s incident and of a 16year old girl in northern Uttar Pradesh by a member of BJP, Kuldeep Sengar (ironically, victim’s father was arrested and thereafter killed by the Kuldeep’s supporters.) Prior to 2012, there was no single law specifically dealing with children as victims of sexual offences. Then came Protection of Children from Sexual Offences Act in 2012, India’s first comprehensive law to deal specifically with child sex abuse and surprisingly the number of reported cases of child abuse rose by nearly 45% the next year.

The new amendments enable a court to hand out a death penalty to someone convicted of raping a child under 12, even if it does not result in death. In countries like China, Egypt, North Korea, Saudi Arabia, Iran and Afghanistan, rape is punishable with nothing short of death by hanging, beheading or firing squad. Despite the changes to the law and arming Indian courts, there is reluctance to carry out the death penalty. Is there anything wrong with the collective Indian psyche that deters even courts from putting curbs on sexual crimes against even minors? One feels disgusted for the punishment not being exemplary in Asifa’s case when on trial crimes like gang rape and murder were proved. The court was saddled with the law and verdicts of Supreme Court where death penalty awarded was not interfered with and also its observations emphasizing the gravity of such crime with its impact on the society. Do the laws also have a fiction value? When do we really implement them? Is something more needed to shake society’s conscience? It is more likely that the convicts in this case will go in appeal to the higher court against the judgement. The verdict of the lower court also calls for a counter appeal by the prosecution seeking enhancement of punishment to death of the convicts.

 

(A leading lawyer and eminent poet, author contributes a weekly column. He can be reached at:  vaklishabir@gmail.com)     

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Let’s Become Environmental Protectionists!

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Dr. Shahid Amin Trali

It’s very alarming to find the unending disturbances to our environment. Man’s foul play with the nature is not going well with the present as well as our future. The environmental problems are mounting towards a bigger trouble in future but we are yet to recover from deep hibernation/sleep mode. This menace of pollution has existed for centuries but increased at an alarming rate after industrial revolution in the 19th century. Pollution is one of the biggest global killers, affecting over 100 million people. The world’s population is ever increasing and the treasures of the resources are getting overexploited.

 

There is greater need that we must promote better and efficient use of resources. Mass production of plastics, which began just six decades ago, has accelerated very rapidly—most of it in disposable products that end up as trash. If business goes on as usual, plastic pollution will double over the next thirty years. That would mean there will be more plastic in the ocean than fish. Plastics have several health hazards, both for humans and animals. Not just that, it is detrimental for the environment too. We must encourage the reduction, recycling and re-use of wastes as raw material for new products. Our younger generation is highly creative and all they must be given is ample support and opportunities. We must promote ‘Jugaad’ creation, the idea of using the waste to make something novel and save resources. We need to set examples from our home places and re-use what we would easily throw away and conserve for a future.  What we cannot recycle let us try not use them. Let’s promote paper products as they break down better in the environment and don’t affect our nature as much.

Learning to be more environmentally friendly is not that difficult task than we think. We must start by living with a greater awareness of the resources that we use in our daily life.  For example we must turn off the lights as soon as we leave a room in our homes and offices or even schools and colleges.  We must be environmental friendly when it comes to building our homes and buildings. Trees are necessary for us to survive. We must plant small trees around our home, don’t cut them unless it’s necessary, work with local environmental groups to plant more trees and educate others about the beauty and benefits of trees.

Water needs to be conserved. Few ways to conserve water are – take short showers, keep the running tap close while we brush our teeth, recycle water in our home, use water saving appliances etc. More good ways to contribute will be consume less energy, buy recycled products, and create less waste and many more. We must refrain from open burning as backyard trash and leaf burning releases high levels of toxic compounds. We must use public transit as much as possible. Let us walk more and drive less to conserve fuel and prevent auto-emission. Let’s use bicycles and scooters for shorter distances to save resources.

Cleanliness leads to cleanliness. We can easily find that a dirty place adds to its dirtiness. When we come across a fresh place, we think twice before turning it bad and dirty. It is sad when we think for our clean homes and hardly care for the roads, hospitals, educational institutions, offices, markets etc. Our mindset has to undergo a big overhaul that our public property is our own property.

India is one of the three worst offending countries when it comes to environmental performance. Corporate leaders have started joining the race to save the planet. Being environment-friendly, eco-friendly, going green are huge claims referring to goods and services, laws, guidelines and policies that inflict reduced, minimal, or no harm at all, upon ecosystems or the environment. But the attempts need to be strong and concrete. Small and medium sized companies in particular generate a lot of pollution and need awareness and support policies to safeguard the environment.

Individuals, organizations and governments need to join hands to protect our environment.  Let’s educate others about the significance of living an environmentally friendly life. The more we will share an awareness of the richness of the environment, the more we can do together to protect it. Environmental love and care must receive an all time attention and priority. Let’s go beyond the model building exercises for safer environment and turn them into reality. Organizations must appreciate and reward the employees for their environmental care.

The Philippines recently has taken a unique and wonderful initiative. The island country passed a law under which every student there has to mandatorily plant ten trees in order to get their graduation degree. The law if it is implemented properly will ensure that over 175 million trees will be planted every year. The law will be applicable for college, elementary, and high school students as well. Our education system must owe greater responsibility towards environment and find some unique strategies to safeguard it. Let’s go green and pledge to protect our environment. (The author is Assistant Professor, ITM University Gwalior, Youth Ambassador, International Youth Society. He can be mailed on: dr.shahidamin15@gmail.com)

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