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The Hindu Notes for 13th September 2018

Drawing a curtain on the past

In striking down Section 377, the Supreme Court has recognised the Constitution’s extraordinary transformative power

In a rousing address to the Constituent Assembly on November 25, 1949, Dr. B.R. Ambedkar laid out his transformative vision for the Constitution. The document, he said, ought to serve as a lodestar in the endeavour to make India not merely a political but also a social democracy. He saw liberty, equality and fraternity as principles of life, as a collective “union of trinity”. “To divorce one from the other,” he said, “is to defeat the very purpose of democracy.” Now, 71 years after Independence, these values that Ambedkar saw as integral to India’s republic, find new meaning in a remarkable judgment of the Supreme Court in Navtej Singh Johar v. Union of India. Not only has the court struck down the wretchedly wicked Section 377 of the Indian Penal Code, insofar as it criminalises homosexuality, but it has also recognised the Constitution’s enormous and extraordinary transformative power. In doing so, the court has provided us with a deep expression of democratic hope. And perhaps we can finally believe, as Nehru said, in his famous midnight speech, that “the past is over, and it is the future that beckons to us now”.

Macaulay’s shadow

Plainly read, Section 377 punishes with imprisonment for life or for a term of up to 10 years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”. Over the years, the term, “against the order of nature”, has been used to persecute members of the LGBTQ community, treating any non-procreative sexual act by them as acts of crime. Thomas Macaulay, the law’s drafter, despised the idea of even a debate on the legislation’s language. “We are unwilling to insert, either in the text, or in the notes, anything which could give rise to public discussion on this revolting subject,” he wrote in his chapter on “unnatural offences”. “…We are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

Like many other colonial-era laws, therefore, Section 377 was inserted with a view to upholding a distinctly Victorian notion of public morality. But post-Independence, the law remained on the books, as an edict that the Indian state saw as intrinsic to the enforcement of its own societal mores. The criminal law, the government believed, was a legitimate vehicle through which it could impose and entrench in society its own ideas of what constituted a good life. Societal morality, to it, trumped constitutional guarantees of equality and liberty.

Long road to freedom

In July 2009, however, the Delhi High Court, in a judgment delivered by a bench comprising Chief Justice A.P. Shah and Justice S. Muralidhar, rejected this vision, and declared Section 377, insofar as it criminalised homosexuality, unconstitutional. In the court’s belief, the law was patently discriminatory. It offended not only a slew of explicitly guaranteed fundamental rights — in this case, Articles 14, 15, 19 and 21 — but also what the judgment described as “constitutional morality”. “Moral indignation, howsoever strong, is not a valid basis for overriding individual’s fundamental rights of dignity and privacy,” the court wrote. “In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”

At the time this was a grand statement to make. Indeed, barely four years later, the Supreme Court reversed the findings in Naz, and rendered the judgment’s radical vision nugatory. In a shattering verdict, the court, in Suresh Kumar Koushal, once again declared homosexuality an offence. LGTBQ persons, to the court, constituted only a “miniscule minority”, and they enjoyed, in the court’s belief, neither a right to be treated as equals nor a right to ethical independence, a freedom to decide for themselves how they wanted to lead their lives.

But now, in Navtej Singh Johar, the court has restored both the quotidian and the outstanding glories of the judgment in Naz. Unexceptionally, Section 377, it has found, infringes the guarantee of equality in Article 14, the promise against discrimination in Article 15, the right to free expression contained in Article 19, and the pledges of human dignity and privacy inherent in Article 21. But, perhaps, more critically, the court has taken inspiration from Naz in bringing to the heart of constitutional interpretation a theory that seeks to find how best to understand what equal moral status in society really demands, a theory that engages profoundly with India’s social and political history.

Interpreting the Constitution

The question of how to interpret a constitution, any constitution, is an age-old one. The Indian Constitution couches its guarantee of fundamental rights in abstract terms. For instance, the Constitution doesn’t expressly tell us what equality, in Article 14, means. Does it mean merely a formal equality, or does it promise a more substantive equality, demanding the state’s proactive participation?

Until now, in the absence of a coherent theory of interpretation, judges have vacillated in answering such questions. But the four separate opinions in Navtej Singh Johar, written respectively by Chief Justice of India Dipak Misra and Justices R.F. Nariman, D.Y. Chandrachud and Indu Malhotra, collectively espouse an interpretive model that gives to India’s history its full consideration. The Constitution “was burdened with the challenge of ‘drawing a curtain on the past’ of social inequality and prejudices,” Justice Chandrachud wrote, invoking Professor Uday Mehta. The document, therefore, was an “attempt to reverse the socializing of prejudice, discrimination and power hegemony in a disjointed society.” Or, as Chief Justice Misra put it: “The adoption of the Constitution was, in a way, an instrument or agency for achieving constitutional morality and [a] means to discourage the prevalent social morality at that time. A country or a society which embraces constitutional morality has at its core the well-founded idea of inclusiveness.” The idea, therefore, is, similar to what the South African courts have held, to eliminate all forms of discrimination from the social structure, and to usher society from degrading practices of the past into an egalitarian future.

There is a danger, many believe, that this theory of interpretation could allow judges to turn into philosopher-kings, allowing them to impose their moral convictions on society. But, as Ronald Dworkin has observed, a strategy of interpretation which partakes a consideration of both text and history is really a “strategy for lawyers and judges acting in good faith, which is all any interpretive strategy can be”.

Future disputes will certainly have to be guided by the court’s general rule prescribed in Navtej Singh Johar. The court has already reserved its judgment in a number of cases that will tell us how it intends on applying this theory. Its decision in cases concerning the entry of women into the Sabarimala temple, on the practice of female genital mutilation of minor girls in the Dawoodi Bohra community, on the validity of the Indian Penal Code’s adultery law, will all prove telling. Yet, much like the challenge to Section 377, the issues at the core of these cases are scarcely controversial as a matter of pure constitutional interpretation. Ultimately, therefore, the true value of Navtej Singh Johar will only be seen when the court sees this theory as integral to its ability to judge clashes between the naked power of the state and personal liberty, to cases such as the challenge to the Aadhaar programme, which seek to reverse the transformation that the Constitution brings. There too, as Chief Justice Misra has written, the court must be “guided by the conception of constitutional morality”.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

An education that is in sync

The concept of general education and specialised education proceeding together needs to be widely adopted in India

Higher education in India has grown exponentially in recent years. A survey by the All India Survey on Higher Education published in July this year shows that the gross enrolment ratio (GER) was 25.8% in 2017-18, up from 10% in 2004-05. GER is the ratio (expressed as percentage), of the total enrolment within a country in a specific level of education, regardless of age, to the population in the official age group corresponding to this level of education.

For higher education, the survey calculates the ratio for the age group 18 to 23 years. Internationally, the age group 18 to 22 is also used. For India, the Survey gives the corresponding figure as 30%. Though the GER for higher education in India is still less than what it is in developed countries, the growth rate is still quite impressive. The next step is to ensure that the outcome of academic programmes by higher education institutes (HEIs) is acceptable.

The debate in the media on higher education is often focussed on issues related to governance and autonomy — but these are not the only important issues. There needs to be a debate on the content of higher education in HEIs. Just after Independence, a commission comprising educationists from India, the U.K. and the U.S., and chaired by Dr. S. Radhakrishnan, was formed “to report on Indian University Education and suggest improvements and extensions that may be desirable to suit present and future requirements of the country”. Its report filed after its deliberations (December 1948-August 1949) came to be known as the Radhakrishnan Commission Report (RCR). Philosophical deliberations in the report that are related to the content of higher education are still relevant today.

A template

The RCR recommended a well-balanced education with ‘general’, ‘liberal’ and ‘occupational’ components. Without all-round general (including liberal) education, one could not be expected to play roles expected of a citizen outside one’s immediate professional sphere. The report advocated that general education and specialised/professional education should proceed together. The study of languages should be given equal importance as one communicated to the outside world only through the medium of language. Therefore, a lack of communication skills could be a handicap.

The RCR drew inspiration from the emphasis on general education in universities in the U.S. It cited a lecture by Einstein (1931) where he said: “The development of general ability for independent thinking and judgement should always be placed foremost, not the acquisition of special knowledge. If a person masters the fundamentals of his subject and has learned to think and work independently, he will surely find his way….”

The American parallel

Recently this year, the National Academies Press (NAP) of the U.S. which represents the national academies of sciences, engineering and medicine published the report, “The Integration of the Humanities and Arts with Sciences, Engineering, and Medicine in Higher Education: Branches from the Same Tree”. One is immediately struck by the importance attached to the integration of Sciences, Technology, Engineering, Mathematics and Medicine and humanities in university teaching in both the RCR and NAP reports.

As in the NAP’s report, the purpose of higher education is to prepare graduates for work and life, as well as active and engaged citizenship — achieved only through the acquisition of knowledge, skills and competencies related to the profession they chose to specialise in and also written and oral communication skills, ability to work as a team, ethical decision making, critical thinking, and ability to apply knowledge in real world settings. The RCR, in turn, talked about including general education as an essential element. But the NAP report goes much beyond what the RCR states and advocates integrating the teaching of humanities in STEM. It says that surveys show that employers now seek graduates with more than just technical capabilities or in-depth knowledge in a particular subject.

Problems in a real-life setting are interdisciplinary and require an appreciation of related fields. The NAP report acknowledges that disciplinary specialisation has resulted in many developments but also points out that emerging problems are multi-disciplinary. This can be seen in two examples: rising demand for energy, and continuing advances in technology. The use of energy on a large scale and the continued availability of energy in an environmental-friendly manner are challenges which cannot be addressed by narrow specialists. There are technical advances every day, influencing everyday life in diverse ways. This is also leading to concerns about privacy, technology-driven social and workforce changes, and the evolving need for individuals to retrain themselves to remain in employment. In such a scenario, it is important that professionals study the impact of innovations on society in a holistic manner.

The NAP report says: “The aggregate evidence reviewed by the committee shows that certain educational experiences that integrate the arts and humanities with STEM at the undergraduate level are associated with increased critical thinking abilities, higher order thinking and deeper learning, content mastery, creative problem solving, teamwork and communication skills.”

The reality

Let us examine the current scene in India against such a backdrop. HEIs are far from integrated. As far as the inclusion of elements of general education in the curriculum for undergraduates is concerned, the situation is mixed. Several engineering, and science education and research institutes have embedded general education programmes at the undergraduate level. Such programmes are missing in most university-affiliated science colleges. Rather, there are institutions that cater to a single stream which precludes the possibility of even an informal interaction between students and faculty with different specialisations. The focus of undergraduate education should be on classical disciplines, with enough credits for general education. Focus on specialisation can wait until the post graduate level.

In 1959, C.P. Snow spoke about “The Two Cultures”. It is time to bridge the divide between the two cultures in the education system and evolve a third culture where the two sides understand and appreciate each other.

R.B. Grover, Emeritus Professor and former Vice Chancellor, Homi Bhabha National Institute, is a Member of the Atomic Energy Commission

Dam disclosures

The deluge in Kerala was made worse by inefficient management of 34 dams

The people of Kerala have braved the worst calamity since the great flood of 1924. The floodwaters have receded from most of the affected areas barring Kuttanad. Most people have gone back to their homes from relief camps, only to find them battered beyond redemption. As the State is coming back to a “new normal” after the devastation, it is time to ponder on the reasons for the floods.

Rubbishing the contention from the Opposition as well as studies from international experts that the mismanagement of dams was the primary reason for the floods, the Kerala government has stood firm that incessant rainfall in August is what caused the floods. This is in contrast to the affidavit filed in the Supreme Court by the Chief Secretary of Kerala, which cited the water released from a dam as the major cause of the floods. While there was considerable deviation in rainfall in August, it is unacceptable to put the onus only on that. In fact, according to a India Meteorological Department study, the rainfall in August was only the sixth highest in the past 143 years (1875-2017) in Kerala.

Mismanagement of dams

One of the major functions of dams is flood protection — to attenuate the flow of water and its impact downstream. The golden rule followed in dam management is to maintain a flood cushion (buffer) in case of unexpectedly high rainfall.

Kerala has 39 major dams. Their maintenance is shared between the Kerala State Electricity Board (KSEB) and the Water Resources Department. They had all reached their full reservoir level by July-end, and were thus incapable of containing the water flow from torrential rainfall in August. This forced the State government to open the gates of 34 major dams, thereby submerging all the major towns downstream.

The Periyar is the longest river in Kerala and has the highest discharge potential. The major dams across this river that are maintained by the KSEB are Idukki, Lower Periyar, and Madupetty. The water from Lower Periyar, Madupetty and Mullaperiyar drains into the Idukki reservoir consisting of the Idukki dam and the Cheruthoni dam. The water from the Idukki reservoir and Idamalayar drains directly into the Bhoothathankettu dam, which is the lowermost in the Periyar system, just 15 km from Kothamangalam town.

A closer look at the reservoir levels reveals that the major dams in the Periyar system were filled to the brim starting August. Idamalayar dam was kept full for most of the days in the pretext of electricity generation. This caused the Periyar to overflow all through its course, in Kothamangalam, Kalady, Perumbavoor, Aluva, and Eloor.

It is the same story with the Chalakudy river system, which consists of the Tamil Nadu Sholayar, Lower Sholayar draining into the Peringalkuthu dam. The Peringalkuthu, which is the lowermost dam in the Periyar river system, had reached its capacity by June 10. But the government officials failed to heed repeated pleas from different research organisations, including the Periyar Samrakshana Samithi, for a controlled release of water from this dam. The unexpected release of water from Tamil Nadu Sholayar and Parambikulam worsened the already vulnerable Chalakudy river system. The State government also failed miserably in coordinating with the Tamil Nadu government on the release of water from Upper Sholayar despite the State heading the joint water regulatory board. Finally, when close to 20 lakh litres of water per second was released from Lower Sholayar and Parambikulam, and 15 lakh litres per second from 526 sq km of its catchment reached the Peringalkuthu dam on August 15, the dam overflowed for more than 3 metres, submerging Chalakudy town. The dam has been severely damaged with its structural stability is under serious threat.

The missing water level data of Kakki dam in the Pampa river system from the public domain is conspicuous as there has been a lot of hue and cry over its management. There is little doubt that it was the water which was flushed out of the Sabirigiri projects, Pampa dam and the Kakki-Anathode dam which caused the heavy flood in Pathanamthitta district and in Chengannoor. According to the data released by the State Disaster Management Authority, 85,300 litres of water was released every second from Kakki-Anathode dam, and 47,000 litres from Pampa dam at 4 p.m. on August 14. The shutters of both dams were raised at night. By 10 p.m., 4.68 lakh litres of water started gushing out of both dams. By 1 a.m. on August 15 , it rose to 6.5 lakh litres per second and by 6 a.m., to 9.39 lakh litres per second. The public was caught unawares until the water reached the roof of their houses. An analysis of spill from these dams reaffirms the gross mismanagement in the operation of dams. Data posted by the KSEB reveals that the water released into the Periyar river basin from the Idukki and Idamalayar dams surged from 46.26 mcm/day on August 14 to 200 mcm/day the next day. This caused the towns downstream to be totally submerged.

Better management of water in Sholayar and Idamalayar would have considerably reduced the extent of the flood in the Periyar and Chalakuddy river system.

The operation and maintenance of dams is governed by the guidelines of the Central Water Commission and water management protocols. The safety, precautions and evacuation measures to be followed while declaring different alerts (blue, orange, red) are clearly mentioned in these guidelines. The guidelines state that the reservoir control schedule, release procedure and gate operation procedure have to be done only after assessing the potential impact of the procedures. The State government and the KSEB opened 34 of the 39 major dams simultaneously. Controlled release from these dams would have reduced the gravity of the calamity.

What needs to be done

Admittedly, the change in topography due to human interventions and climate change have contributed to the sporadic and excess rainfall. The proliferation in illegal stone-quarrying activity has been a major reason for widespread landslides. The decision of the incumbent government to reduce the boundary of a quarry from residential buildings to 50 metres has facilitated the mushrooming of the stone quarrying mafia and needs to be repealed at the earliest. The recent decision to water down the Kerala Conservation of Paddy Field and Wetland Act will add to the problem. The disaster management system has failed to predict disasters and plan the process of evacuation. This system needs to be revamped by roping in experts from different areas. The State government must also order a judicial inquiry into the gross mismanagement of dams in the State. With environmental experts and scientists suggesting that floods of this nature would no longer be a once-in-a-lifetime phenomenon, it is imperative to understand the real cause of the calamity and plug the gaps at the earliest.

Ramesh Chennithala is the Leader Of Opposition in the Kerala Legislative Assembly

The seven convicts have suffered enough

The Governor has to act in accordance with the Tamil Nadu government’s recommendation in the Rajiv Gandhi case

Following the order of the Supreme Court in the mercy petition by A.G. Perarivalan, one of the seven convicts in the Rajiv Gandhi assassination case, the Tamil Nadu government has recommended to the Governor to pardon and release all the seven.

Some people have doubted whether these convicts will be released even after the State government’s recommendation; I believe that the Governor has no option but to act in accordance with the State government’s recommendation and release them.

Whose discretion?

In our system of parliamentary democracy, which we have borrowed from the U.K., the Governor is much like the King of the U.K., a constitutional head who has to act not at his or her own discretion, but on the advice of the Council of Ministers. This was the law declared by the seven-judge Bench of the Supreme Court in Shamsher Singh v. State of Punjab (1974), which came even before the 42nd Constitution Amendment which only expressed what was earlier implicit in the Constitution.

Following this decision, in two more decisions of the Constitution Bench — Maru Ram v. Union of India (1980) and Kehar Singh v. Union of India (1988) — the Supreme Court held that in exercising the power under Article 72 (the power of the President to grant pardons, and to suspend, remit or commute sentences in certain cases) or Article 161 (the power of the Governor to do the same) of the Constitution, the President or the Governor has to act on the advice of the Council of Ministers and not at his or her own discretion. Thus, the Governor of Tamil Nadu has no option but to release the seven convicts.

Two apprehensions

Those who doubt that the seven convicts can still be released after the Tamil Nadu government’s recommendation have two apprehensions, but both are unfounded. The first apprehension is on the basis of the Supreme Court judgment in Union of India v. V. Sriharan alias Murugan (2015). A careful perusal of this decision shows that it only relates to the statutory power of the State government under the Code of Criminal Procedure (CrPC) and has nothing to do with the constitutional power of the Governor under Article 161 of the Constitution. What the judgment notes is the requirement in Section 435(1) of the CrPC of consulting the Central government when the State government wishes to grant remission of a sentence in a case which had been investigated by the Central Bureau of Investigation. The court held that the word “consultation” in Section 435(1) must be interpreted to mean “concurrence”. But the constitutional power to grant pardon in Article 161 is different from the statutory power under the CrPC. Hence, the aforementioned decision does not come in the way of the Governor granting pardon, without the concurrence of the Central government.

The second apprehension is that if the Governor grants pardon, his action may be struck down by the court as arbitrary. No doubt it has been held in Maru Ram’s case and other subsequent judgments of the Supreme Court that the Governor’s act of granting pardon is subject to judicial review and can be struck down if it is arbitrary or mala fide. But can it be said that if the Tamil Nadu Governor grants pardon to the seven convicts on the basis of the recommendation of the State government, he will be acting in an arbitrary or mala fide manner? The answer is clearly in the negative. In Maru Ram, the Supreme Court had observed that the “considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean”. Among such myriad considerations can surely be that the convicts have spent 27 years in jail and have suffered enough. As Portia said in Shakespeare’s Merchant of Venice, justice should be tempered with mercy. The Governor must now act quickly and pardon and release the seven convicts without any ado.

Markandey Katju is a former Judge of the Supreme Court of India