GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

A three-judge Bench of the Supreme Court led by Chief Justice of India (CJI) U U Lalit will hear the challenge to the contentious Citizenship (Amendment) Act.

What is Citizenship Amendment Act (CAA), 2019?

• The act is sought to amend the Citizenship Act, 1955 to make Hindu, Sikh, Buddhist, Jain, Parsi, and Christian illegal migrants from Afghanistan, Bangladesh, and Pakistan, eligible for citizenship of India.
• In other words, it intends to make it easier for non-Muslim immigrants from India’s three Muslim-majority neighbours to become citizens of India.
• Under The Citizenship Act, 1955, one of the requirements for citizenship by naturalization is that the applicant must have resided in India during the last 12 months, as well as for 11 of the previous 14 years.
• The amendment relaxes the second requirement from 11 years to 6 years as a specific condition for applicants belonging to these six religions, and the aforementioned three countries.
• It exempts the members of the six communities from any criminal case under the Foreigners Act, 1946 and the Passport Act, 1920 if they entered India before December 31, 2014.

Key feature: Defining illegal migrants

• Illegal migrants cannot become Indian citizens in accordance with the present laws.
• Under the CAA, an illegal migrant is a foreigner who: (i) enters the country without valid travel documents like a passport and visa, or (ii) enters with valid documents, but stays beyond the permitted time period.
• Illegal migrants may be put in jail or deported under the Foreigners Act, 1946 and The Passport (Entry into India) Act, 1920.

Exceptions

• The Bill provides that illegal migrants who fulfil four conditions will not be treated as illegal migrants under the Act.  The conditions are:

1. they are Hindus, Sikhs, Buddhists, Jains, Parsis or Christians;
2. they are from Afghanistan, Bangladesh or Pakistan;
3. they entered India on or before December 31, 2014;
4. they are not in certain tribal areas of Assam, Meghalaya, Mizoram, or Tripura included in the Sixth Schedule to the Constitution, or areas under the “Inner Line” permit, i.e., Arunachal Pradesh, Mizoram, and Nagaland.

Controversy with the Act

• Country of Origin: The Act classifies migrants based on their country of origin to include only Afghanistan, Pakistan and Bangladesh.
• Other religious minorities ignored: It is unclear why illegal migrants from only six specified religious minorities have been included in the Act.
• Defiance of purpose: India shares a border with Myanmar, which has had a history of persecution of a religious minority, the Rohingya Muslims.
• Date of Entry: It is also unclear why there is a differential treatment of migrants based on their date of entry into India, i.e., whether they entered India before or after December 31, 2014.
• Against the spirit of Secularism: Further, granting citizenship on the grounds of religion is seen to be against the secular nature of the Constitution which has been recognised as part of the basic structure that cannot be altered by Parliament.

Basis of challenging in Supreme Court

• The challenge rests primarily on the grounds that the law violates Article 14 of the Constitution that guarantees that no person shall be denied the right to equality before law or the equal protection of law in the territory of India.

The Supreme Court has developed a two-pronged test to examine a law on the grounds of Article 14.

1. First, any differentiation between groups of persons must be founded on “intelligible differentia”
2. Second, that differentia must have a rational nexus to the object sought to be achieved by the Act

• Simply put, for a law to satisfy the conditions under Article 14, it has to first create a “reasonable class” of subjects that it seeks to govern under the law.
• Even if the classification is reasonable, any person who falls in that category has to be treated alike.

What happens next?

• The listing of the CAA challenge indicates that the hearing will be fast-tracked.
• The court will have to ensure that all pleadings, written submissions are filed and served to the opposite party before it is listed for final hearing.
• Some petitioners could also seek a referral to a larger Constitution Bench.
• However, the challenge is to a statute and does not directly involve interpretation of the Constitution.
• These issues are also likely to be debated before the court allots time for the final hearing.

Way forward

• India is a constitutional democracy with a basic structure that assures a secure and spacious home for all Indians.
• Being partitioned on religious grounds, India has to undertake a balancing act for protecting the religious minorities in its neighbourhood.
• These minorities are under constant threat of persecution and vandalism.
• India needs to balance its civilization duties to protect those who are prosecuted in the neighbourhood.

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A five-judge Constitution Bench led by CJI U.U. Lalit are hearing petitions challenging the 10% quota for the economically weaker sections (EWS) and an Andhra Pradesh law that grants reservation to Muslims.

What is the news?

• The five-judge Bench, led by CJI, is considering the validity of the 103rd Constitutional Amendment.
• The said amendment provides the 10% reservation to economically weaker sections (EWS) of society in government jobs and educational institutions.
• Economic reservation was introduced by amending Articles 15 and 16 and adding clauses empowering the State governments to provide reservation on the basis of economic backwardness.

EWS Quota: A backgrounder

• The 10% reservation was introduced through the 103rd Constitution Amendment and enforced in January 2019.
• It added Clause (6) to Article 15 to empower the Government to introduce special provisions for the EWS among citizens except those in the classes that already enjoy reservation.
• It allows reservation in educational institutions, both public and private, whether aided or unaided, excluding those run by minority institutions, up to a maximum of 10%.
• It also added Clause (6) to Article 16 to facilitate reservation in employment.
• The new clauses make it clear that the EWS reservation will be in addition to the existing reservation.

Significance of the quota

• The Constitution initially allowed special provisions only for the socially and educationally backward classes.
• The Government introduced the concept of EWS for a new class of affirmative action program for those not covered by or eligible for the community-based quotas.

What are the court’s questions about the criteria?

• Reduction within general category: The EWS quota remains a controversy as its critics say it reduces the size of the open category, besides breaching the 50% limit on the total reservation.
• Arbitrariness over income limit: The court has been intrigued by the income limit being fixed at ₹8 lakh per year. It is the same figure for excluding the ‘creamy layer’ from OBC reservation benefits.
• Socio-economic backwardness: A crucial difference is that those in the general category, to whom the EWS quota is applicable, do not suffer from social or educational backwardness, unlike those classified as the OBC.
• Metropolitan criteria: There are other questions as to whether any exercise was undertaken to derive the exceptions such as why the flat criterion does not differentiate between metropolitan and non-metropolitan areas.
• OBC like criteria: The question the court has raised is that when the OBC category is socially and educationally backward and, therefore, has additional impediments to overcome.
• Not based on relevant data: In line with the Supreme Court’s known position that any reservation or norms for exclusion should be based on relevant data.
• Breaches reservation cap: There is a cap of 50% on reservation as ruled in the Indira Sawhney Case. The principle of balancing equality ordains reservation.

What is the current status of the EWS quota?

• The reservation for the EWS is being implemented by the Union Government for the second year now.
• Recruitment test results show that the category has a lower cut-off mark than the OBC, a point that has upset the traditional beneficiaries of reservation based on caste.
• The explanation is that only a small number of people are currently applying under the EWS category — one has to get an income certificate from the revenue authorities — and therefore the cut-off is low.
• However, when the number picks up over time, the cut-off marks are expected to rise.

Practical issues with EWS Quota

The EWS quota will come in for judicial scrutiny soon. But it’s not only a matter for the judiciary, India’s Parliament should revisit the law too.

• Hasty legislation: This law was passed in haste. It was passed in both the houses within 48 hours, and got presidential approval the next day.
• Minority appeasement: It is widely argued that the law was passed to appease a certain section of upper-caste society and to suppress the demands for minority reservations.
• Morality put to question: Imagine! A constitutional amendment has been made with few hours of deliberation and without consultation of the targeted group. This is certainly against constitutional morality and propriety.
• Substantial backing is missing: This amendment is based on a wrong or unverified premise. This is at best a wild guess or a supposition because the government has not produced any data to back this point.
• Under-reservation of Backward Classes: The assertion is based on the fact that we have different data to prove the under-representation of SC, ST, OBCs. That implies that ‘upper’ castes are over-represented (with 100 minus reservation).
• Rationale of 10%: There is one more problem in this regard. The SC and ST quota is based on their total population. But the rationale for the 10 per cent quota was never discussed.
• Principle of Equality: Economic backwardness is quite a fluid identity. It has nothing to do with historic wrongdoings and liabilities caused to the Backward Classes.

Way forward

• Preserving the merit: We cannot rule out the sorry state of economic backwardness hampering merit in our country.
• Rational critera: There has to be collective wisdom to define and measure the economic weakness of certain sections of the society in order to shape the concept of economic justice.
• Judicial guidance: Judicial interpretation will pave the wave forward for deciding the criterion for EWS Quota.
• Targetted beneficiaries. The centre needs to resort to more rational criteria for deciding the targeted beneficiary of this reservation system. Caste Census data can be useful in this regard.
• Income study: The per capita income or GDP or the difference in purchasing power in the rural and urban areas, should be taken into account while a single income limit was formulated for the whole country.

Conclusion

• Reservation is a constitutional scheme to ensure the participation of backward classes shoulder to shoulder with all citizens in the nation-building process.
• The EWS quota with above discussed ambiguities is the subversion of the constitutional scheme for reservation.

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A Constitution Bench led by Justice D.Y. Chandrachud will hear the legal battle between the Centre and the Government of Delhi for control over officials in the national capital.

What is a Constitution Bench?

• The constitution bench is the name given to the benches of the Supreme Court of India.
• The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

Constitution benches are set up when the following circumstances exist:

1. Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
2. President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
3. Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.

• The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
• Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:

1. K. Gopalan v. State of Madras (Preventive detention)
2. Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
3. Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

Why in news now?

• A 2018 Constitution bench decision interpreting Article 239AA had not dealt with an aspect having a bearing on the dispute over services, CJI agreed.
• The proceedings have their genesis in the Delhi HC judgment of August 4, 2017, whereby it held that for the purposes of administration, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
• On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.

What is the 2018 Judgment all about?

• By a majority decision in July, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
• It said that while the CoM must communicate all decisions to the L-G, this does not mean that the L-G’s concurrence is required.
• In case of a difference of opinion, the L-G can refer it to the President for a decision.
• The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the CoM or is bound to implement the decision of the President on a reference being made.
• The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.

When power tussle began?

• Subsequently in 2019, a two-judge bench of the SC dealt with some individual issues arising from the power tussle between the Centre and the NCT government.
• It ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials.
• The power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government, the judgment said.

Issue over control of administrative services

• The judges, however, differed on who should have control over administrative services.
• This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question.
• The 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA.
• The Centre has urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.

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Context

• As we celebrate the nation @75 , we must also reflect on the mixed nature of our democracy

Definition of democracy

• “Government of the people, by the people and for the people” were the words used by Abraham Lincoln in the year 1863 while talking about democracy.

Purpose of democracy

• Cornerstones of democracy include freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights.

Background

• India is a parliamentary democratic secular republic in which the president of India is the head of state & first citizen of India and the prime minister of India is the head of government.
• It is based on the federal structure of government, although the word is not used in the Constitution itself.

How it has performed

(1) Political front

• India is the world’s the largest democracy proved success in accommodation of group and regional demands in a complex, quasi-federal, polity.
• During the first general election in the 1951 India had 54 political parties and now it has grown up to 464 in the 2014 general election as an evident of deepening of the democratic process.
• In the first General election 1951, 173 million citizens were given right to vote.
• In the 16^th general election in 2014, the size of the electorate had increased to 814 million.

(2) Social front

• The democratic process has brought about a shift of political power from the middle and higher castes and classes of urban society to backward classes who are now the politically most influential ones in the country.
• They have won reservations for themselves in legislatures and government services as were accorded to the Scheduled Castes and Scheduled Tribes after independence through Constitutional provisions.

(3) Economic Front

• These include strategic affairs and security, politico-legal democratic governance as well as society and economy.
• India has been able to emerge as a regional power in Asia and super power in south Asia backed by its economic, military and nuclear capabilities.

Contradictions in democracy

• Performance of Bureaucracy: Dishonest officials to protect themselves from the consequences of their wrong-doings have largely exploited constitutional protection for the Services under Article 311.
• Administration of Justice: Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to Extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.
• Areas of Concern: There is a fundamental breach of the constitutional faith on the part of the Governments and their method of governance lies in the neglect of the people who are the ultimate source of all political authority.
• Regionalism: Issues of national integrity and security have not received adequate and thoughtful attention. Mechanisms for the assessment of early warning symptoms of social unrest are absent.
• Corruption: The increasing instability of elected governments is attributable to opportunistic politics and unprincipled defections.

Some positive suggestions to government

• Feedback: The Government should hear criticism rather than rejecting it outrightly. Suggestions on eroding democratic values need a thoughtful, and respectful response.
• Freedom of press: The press and the judiciary which are considered the pillars of India’s Democracy, require to be independent of any executive interference.
• Opposition: strong democracy requires strong opposition. Without an alternative choice, the very objective of election to provide a check on arbitrary power gets defeated.

Way forward

• The institutionalization of constitutional democracy has helped the people of India realize the importance of democracy and inculcate democratic sensibilities among them.
• At the same time, it is important that all the government organs work in harmony to uphold the trust people of the country have held in them and ensure the objectives of true democracy.

Mains question

Q.We are celebrating Azadi ka amrit mahotsav India @75, trace the journey of democracy critically by providing some suggestions for robust democracy.

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