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It’s not the Nth schedule Four in one |
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Saffron namaskar Impart education, not mumbo-jumbo THE Madhya Pradesh Government, doubtless, accords the highest priority to schools and colleges — though not for education. Schools seem to have become the ruling BJP’s favourite playground for sectarian political games. Chief Minister Shivraj Singh Chauhan’s government first claimed national attention when it ordered that singing Vande Mataram would be compulsory in educational institutions.
March of lawlessness
My bath right
Judicial review is
here to stay How innovation can change the world Delhi
Durbar
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It’s not the Nth schedule THE nine-Judge Supreme Court Constitution Bench headed by outgoing Chief Justice Y.K. Sabharwal has rightly ruled on Thursday that the laws included in the Ninth Schedule of the Constitution after April 1973 were open to judicial review. The judgement speaks volumes about the judges’ concern about the citizens’ fundamental rights and the foremost need to protect these rights from any arbitrary action of the legislature and the executive. The Bench held that if laws put in the Ninth Schedule abridge or abrogate the fundamental rights guaranteed under Articles 14, 19, 20 and 21 of the Constitution and consequently resulted in the violation of the basic structure, such laws will have to be declared as null and void. Significantly, the Bench has not questioned or quashed the constitutional validity of the Ninth Schedule under Article 31 B of the Constitution. However, it made it clear that if any law included in this Schedule violates, restricts or encroaches upon the fundamental rights, the State will have to justify its action on the touchstone of the doctrine of the basic structure. Over the years, successive governments have misused the Ninth Schedule for narrow partisan ends. Nehru included 13 laws in it on the ground that the courts should not be allowed to come in the way of socialist policies such as land reforms. However, he never wanted it to be used as a “laundary”. Today, it has as many as 284 laws ranging from bonded labour to essential commodities! A classic example of misuse is the inclusion of the law on 69 per cent quota in Tamil Nadu. This was done in the wake of the apex court ruling in the Mandal case that total reservations cannot exceed 50 per cent. It is debatable whether there is any need for the Ninth Schedule today. However, Thursday’s ruling will have far-reaching implications for the polity in the context of fresh attempts by politicians like Tamil Nadu Chief Minister M. Karunanidhi to put the quota legislation in the Ninth Schedule. In the light of the Supreme Court’s reiteration of its basic structure doctrine, both the Union Government and Parliament should ensure that they do not misuse the Ninth Schedule and violate the constitutional mandate in the exercise of their powers. Otherwise, it will come under judicial scanner — as it ought to. |
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Four in one WITH a textbook-perfect launch of the PSLV C-7, the redoubtable scientists of the Indian Space Research Organisation (ISRO) have notched up a morale-boosting success. With nine consecutively successful launches, the PSLV has indeed become a workhorse and its success a matter of routine. Given last year’s failure of the GSLV (Geosynchronous Launch Vehicle), the scientists would have been hoping that nothing went wrong again, and they could put that failure well behind. After every minute check and recheck, of every single part, every single calculation, there was always an element of uncertainty in a launch. Once the on-board computers took over, in the countdown to lift-off, all you could do was read off data from computer screens and pray. Cheers went up in the command centre at Sriharikota at every separation and ignition of the PSLV’s four stages, and the final injection into orbit. As the scientists hugged each other, the whole nation would have felt their joy. C-7 injected into orbit for the first time four satellites, including a key focus of interest, the Space Capsule Recovery Experiment (SRE-1). This 550-kg capsule is ISRO’s first tentative step at mastering the kind of re-entry technologies which would go into a reusable launch vehicle. While India has already demonstrated a re-entry vehicle with the Agni missile, a reusable launch vehicle, like NASA’s Discovery or Challenger, is an altogether different game. After a few days, SRE will re-enter the atmosphere, and the aim is to recover it after a splash down in the Bay of Bengal. As for CARTOSAT-2, it is a powerful addition to our imaging capability. The scientists can now work with renewed vigour on the challenges ahead. The third developmental flight of the GSLV, the “Mark II” with an indigenous cryogenic engine, is on the cards this year. A successful flight with indigenous cryogenic technology — the ones so far have used Russian engines — will indeed be a landmark event. The GSLV Mark III, capable of launching a 4000-kg satellite, is also eagerly awaited, as is ISRO’s first moon mission Chandrayaan -1. Keep up the good work, ISRO. The whole country is counting down. |
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Saffron namaskar THE Madhya Pradesh Government, doubtless, accords the highest priority to schools and colleges — though not for education. Schools seem to have become the ruling BJP’s favourite playground for sectarian political games. Chief Minister Shivraj Singh Chauhan’s government first claimed national attention when it ordered that singing Vande Mataram would be compulsory in educational institutions. Now, in his zeal to popularise yoga, the Chief Minister has decreed that from January 25 surya namaskar will be compulsory in all government schools and colleges in the state. Predictably, this has given rise to opposition, especially from Muslim organisations, which have said that their children would not submit to this. The state of education in Madhya Pradesh, as in several other parts of the country, is hardly enviable. There are schools with teachers, but no students; and schools with students and no teachers. Even as there are schools in search of both teachers and students, there are no schools in many places where they are needed. The problem is not only one of infrastructure and resources but also motivating enrolment and attendance. This is challenge enough for any government serious about ensuring education for all. Far from addressing this, the MP government seems to be doing its best to drive students away from educational institutions. Schools and colleges should confine themselves to educational and relevant extra-curricular activities. Programmes in the interests of the students’ health are desirable, but to exploit this for insidiously pursuing a saffron agenda and extending state patronage to yoga gurus is not the job of a government. Educational institutions should stick to education in the strictest sense of the term and foster an inclusive and secularist culture. Muslim organisations would also serve the community and the country better by not rising to such baits that are calculated to communalise education. The government order makes no sense when surya namaskar is compulsory for the institutions but not the students. While Muslims can exercise the choice, the government should revoke the order if only to avoid another imposition on teachers and administrators. |
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Life is a rainbow which also includes black. — Yevgeny Yevtushenko
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March of lawlessness
NOTHING could have underscored my agonised and agonising question more vividly, than what happened in the Supreme Court only the other day. A two-member Bench — comprising Justice K. G. Balakrishnan (already designated next Chief Justice) and Justice D. K. Jain — had to “pull up” commercial banks for resorting to “muscle power, using goondas” to recover “loans” or to “seize” cars bought on these loans. When counsel of the ICICI Bank — not a fly-by-night outfit by any means — persisted in his contention that if force wasn’t applied “the defaulters would not repay”, the Bench tersely told him: “Recovery must be through legal means. We are governed by rule of law. How can someone take possession by force? You cannot employ goondas”. Sorry, My Lords, with the utmost respect one must submit that the ruling is impeccable in theory but, alas, not in practice. Even the bank’s lawyer’s brazen argument has a grain of truth. Imagine what would happen when all commercial banks in the country, with an army of loan defaulters on their books — partly because of their own zealous campaigns to offer a loan to whoever would accept it — start legal proceedings against those unable or unwilling to repay. At the current rate and with mountains of arrears, these cases might not be settled for years. In any case, the blatant use of thugs and their muscle power by the banks, doubtless deeply deplorable, is relatively minor compared with the gross abuse of power and clout almost across the board. Honourable exceptions are distressingly few. The Indian State and society seem content to let things be as they are. Straining at a gnat while swallowing a camel won’t help. Men with the most heinous charges against them routinely get elected to Parliament. Some are even sitting pretty in the Union Cabinet, as did their counterparts in the BJP-led National Democratic Alliance. The Congress used to protest against this in the past. Now the roles are reversed. But the two sides would never join hands to reverse the alarming situation. On the other hand, India is undeniably the world’s largest democracy, despite its heart-rending flaws and failures. To live here is surely better than in a huge number of other countries. Yet, rising India has a very limited concept of what democracy is. Here democracy only means holding elections every five years or oftener, if required, and to win them by hook and crook. Almost the entire political class refuses to believe that democracy also requires rule of law, an impartial administration, an independent judiciary, tolerance of dissent, reasoned debate and eventual acceptance of the majority’s decision, a need scrupulously to ensure that occasional extra-parliamentary agitation is entirely peaceful, and, above all, equality before the law. With the exception of the independent judiciary, albeit only at the higher levels, all other essential attributes of democracy are conspicuous in India by their sheer absence. No basic tenet of democratic governance is violated more flagrantly than that before the law all citizens are equal. This painful issue has been brought to the fore by the unspeakably horrific serial murders in Noida of children after being sexually abused and of women after being raped. Their mutilated bodies were buried in a drain adjoining the posh bungalow where the chilling outrages took place. Psychopaths and perverts do exist everywhere, of course. But this cannot obviate the two pertinent questions that are being asked. Over the last two years 30 children went missing from the neighbouring village of Nithari, the very ones whose remains have been dug up from the drain that nobody had bothered to clean since 1994. Not only did the police refuse to register FIRs, it coerced some of the devastated parents, miserably poor illegal immigrants from Bangladesh, to “admit” that their daughters were in the “flesh trade”. This contrasted starkly and shamefully with the overdrive into which the same police had gone to recover the abducted child of a wealthy resident. Why? The second question relates to the thundering silence of the page 3 people who had come out in force on the streets of the capital, lighted candles in hand, for their noble demand for justice for Jessica Lal. Do Nitahari’s children of a lesser God deserve no protection or sympathy? U.P.’s Chief Minister Mulayam Singh Yadav has drawn tremendous flak because of the gruesome Noida-Nithari outrage, as he was bound to, especially with the assembly election round the corner. His brother’s egregiously insensitive remarks and his own initial reluctance to hand over the investigation to the CBI — which is exactly what the Congress Chief Minister of Maharashtra had done in relation to the no less bizarre and horrible crime against a Dalit family in the state’s village of Khairlanji — has aggravated his difficulties, now added to by Mr Ajit Singh’s decision to part company with him. Incidentally, the great middle class is even more indifferent to Kharilanji’s burning horrors than it is to the nauseating crimes in Nithari. Between Nithari and Nandigram in West Bengal physical distance may be immense but in terms of spreading lawlessness the two places are rather close. The issue of farmland being acquired for industrial purposes is highly complex and must be discussed separately. But there is no doubt whatever that the matter has now become a source of bitter discord and virulent violence. The CPM has landed itself in a mess from which there is no easy exit. It has been sharply attacked even by its usually staunch allies. For much too long the country has also been tormented by various brands of terrorism, ranging from the cross-border jihadi one to the Maoist. Nearly a fourth of the countryside, astride a corridor starting from the Nepal border to the shores of Andhra, is practically under Naxalite control. And now ULFA in Assam — that was being coddled until very recently — has renewed its savage campaign to butcher the poor Bihari workers. Add to this the convenient disappearance of the son of Orissa’s Director-General Police, convicted of raping a German tourist in Rajasthan, and it becomes clear what kind of rule of law prevails. In this context, it is also depressing that the Army top brass is taking too long a time to preserve the shining reputation of the finest institution. Why the delay in meting out just desserts to the bad hats who staged the reprehensible attack on Kolkata’s Park Street police
station?
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My bath right
WHEN I sing while bathing, I am in seventh heaven sharing ecstasy with the likes of Kishore Kumar. I can sing sad and mirthful songs with the skill of a perfectionist. I can yodel too. I have, however, never tried my vocal bands on a public stage otherwise, I am confident, I would have been an honoured recipient of eggs and tomatoes. Rupali, my granddaughter, who herself sings well and has had quite a few stage shows, is an able reviewer of my singing ability and selection of songs. Once, under the flowing shower, I was in Kunal Ganjawala mode. Rupali shouted from outside, “Nanu, the film was enough. Please don’t ‘murder’ the song.” The other day when I was totally lost in that forgotten voice of Master Madan with “yun na rah rah kar hamen tarsaiye. Aayeeye, Aa bhi jaayeeye.” She commented, “What is the matter, Nanu? Is that dose of Isabgol with hot milk at night not proving to be effective?” I continue getting such medals (or needles) from my nears and dears for my bathroom singing but my vocal mellifluence continues. And I am sure that many of my brother bathroom singers, braving the cold water on a wintry morning, must be humming, “thande thande paani se nahana parega”, if not remembering Goddess Kali. Bathroom singing is not an ancient art, if it is an art. There were no bathrooms in old Indian homes. People, even the kings, used to go to the rivers and ponds for cleaning their bodies and their ritual was to chant “mantras” while bathing. There are stories of Raja Bhoj taking bath in river Shipra. In the West, bathing was a superfluous operation. It is known that Queen Elizabeth-I used to have bath once a year, when she really changed garment next to her skin. As is the Queen, so are the subjects. America’s first bathtub was built in Cincinnati in 1842. It was denounced as “luxurious and democratic vanity”. In 1843, Philadelphia prohibited bathing between November 1 and March 15. Two years later Boston made bathing unlawful except when prescribed by a physician. So like democracy, bathroom singing is modern. Again like democracy, bathroom singing is based upon the conviction that there are extraordinary possibilities in ordinary people. Mr Coleridge, I believe you did not have bath-room singers in mind when you said, “Swans sing before they die ‘twere no bad thing / Should certain persons die before they sing.”
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Judicial review is here to stay There is so much talk about turf these days that India’s Chief Justice Designate has thought it fit to declare that he disapproves of turf wars between the Legislature and the Judiciary. That was not a declaration of truce for there had never been a declaration of war by the judiciary. Nor should Chief Justice Balakrishnan’s declaration be construed as judicial capitulation or strategic retreat. What that declaration was intended to convey was that the talk of turf battles amounted to pointless attitudinisation. It was more in the nature of a message of seasonal goodwill. The fact remains that the judiciary will do what it must and Parliament will do what it will. There lies the prospect of encounter and conflict despite the disavowal of the Chief Justice - Designate. The turf, if jurisdiction may be described as turf, is fairly clearly demarcated in our Constitution. A turf in popular usage relates to a racecourse. Parliamentary critics and detractors of the judiciary tend to think and talk in terms of power rather than functions. They reduce the discourse to grabbing of power and expansion of domains, rather than seeing judicial power in the proper perspective as a constitutional duty and function. When the Indian Constitution was being drafted, the advice of Mr. Justice Frankfurter of the U.S. Supreme Court, brought back by Sir Benegal Ray, became a point of discussion. His advice was to limit, curtail or leave out judicial review altogether from the Constitution. That advice was not accepted. All that happened was to exclude the phrase “due process” in Part III of the Constitution. It so happens that a modified due process is very much a part of India’s constitutional jurisprudence today. That is because words are only the skin of the thought, and the thought of due process was the seed in the sapling of judicial review planted firmly in our Constitution, thanks to our founding fathers. That thought has taken root in a thousand different ways in our democratic republican system, which establishes a balance between democracy and rule of law. Judicial review is irreversible and is there to stay. The Constitution lays the duty of judicial and judicious intervention on the High Court and the Supreme Court in all cases:- (i) Where the executive acts of omission and commission are shown to be arbitrary; (ii) When a legislative enactment is demonstrably violative of fundamental rights of the individual, or (iii) When it transgresses the federal distribution of powers under the Constitution. Those judicial duties are not and can never be the plaything of any transient majority in the Parliament or even that of the unanimous legislative will of Parliament, particularly after the doctrine of basic and inviolable structure of the Constitution has become entrenched and sanctified. There are of course the principle of judicial self-restraint and harmonious constitution to guide the judiciary in its work, but in the performance of its constitutional duties, the judiciary cannot abdicate its functions and cannot legitimately be timid or subservient. What the Constitution expressly mandates the courts to do, is to consider the validity and legality of each and every executive act and legislative enactment. Equally, it is within the exclusive jurisdiction of the law courts in our country to adjudicate the guilt or innocence of any individual arraigned before it. Legislators cannot in one breath declare their implicit trust in the judicial process when Shri Lalu Prasad Yadav is acquitted, and accuse the judiciary of being overactive in another breath when it convicts other politicians. Nor is it open to make a grievance when a piece of legislation or even a constitutional amendment is struck down because it falls foul of the Constitution and its basic structure. There have been occasions when the Court sought to expand its turf as in the case of judicial appointments but during the last decade or so, there has hardly been any genuine or legitimate occasion for the Parliament to make any legitimate grievance of transgression of what may be termed as exclusive legislative domain. The judiciary is of course open to criticism and correction but attempts to intimidate or emasculate the judiciary wowed misfire and will certainly be constitutionally counter-productive. The common citizens feel that the Legislatures and the Judiciary ought to get on with their business with due regard to the Constitutional limitations and with self-restraint and mutual respect. The experience of the common citizen is that the judiciary is a relatively more trustworthy or gain of power on behalf of we the people and for the protection of larger public interest. Turf battles are often symptomatic of executive failure, legislative despair and the illusions of grandeur and primary which afflict the politicians.
The writer is a Constitutional expert, senior advocate, former Member of Parliament and former High
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How innovation can change the world Consumer products of themselves do not change the world economy. But some products make a material difference in the way people use their time and hence have a material impact on the economy. It is possible, though not at all certain, that Apple Inc's new iPhone may turn out to be such a product. Of course it is not nearly as important as the mobile phone itself, which has achieved faster global penetration than any new product in the history of the world and has transformed economic activities particularly in China, India and Africa. It is even possible that it will turn out to be a commercial failure. But it is equally possible that it will be a catalyst for change in mobile telephony, stimulating a host of new applications that really will transform the world economy. The argument runs like this. The US pioneered computer ownership and the internet but it has lagged badly on mobile telephony. So new developments in the States, such as YouTube, have tended to be designed for the PC rather than the mobile phone, even if the mobile phone camera does have an increasingly important role in video recording. The most important product spanning the two technologies, the BlackBerry, came from Canada rather than US. Within most of the developed world, this has not been of great significance. Internet penetration in Western Europe and Japan is high enough – typically three-quarters of the rate of the US. However in the developing world mobile phone penetration has raced ahead of both computer ownership and access to the internet. You would expect that to have happened because, after all, a mobile phone is cheaper than a computer. The effect is that if you want to deliver services in China or India by an electronic means, a mobile phone is a much better mechanism than a computer. Take banking services. Here we have become accustomed to Internet banking but mobile phone banking is pretty embryonic. But last month my colleague Jeremy Warner was in India and saw a new mobile phone banking system developed by Infosys, which was extremely simple and user friendly. The US and Canada top the G7 league in computer ownership but come right at the bottom in mobile phone penetration. You can also see how a quarter of the Chinese population has a mobile phone in contrast to the still-low numbers of computers; in India the levels of both are lower but the disparity is much the same. The US company with the best record for combining sleek design with intuitive functionality – the extraordinary ability to figure out what people want before they know they want it – may have created a product that will end the trans-Atlantic divide. Americans have been gradually going mobile; this will complete the process. If this is right, and you do have to take everything that is said about the iPhone with a pinch of salt, this will stimulate a global quest for new mobile services. There will certainly be a barrage of new phones doing similar things and they too will provoke the development of new services. What will these services be? We cannot know and in any case they will take months, years indeed, to be developed. We can however say a few things. One is that the services could come from anywhere, since the iPhone will be a global product – apparently it will be a GSM quad-band – and that they won't come just from large companies but from small start-ups too. A second is that some of these start-ups will be in sheds in Mumbai and Shanghai as well as offices in Palo Alto, though the interaction between finance and entrepreneurs in California remains one of the great strengths of the US hi-tech industry. A third is that while as a general rule the software is more interesting than the hardware, this may be another example, like the iPod, where the hardware matters too. Don't underrate the power of fashion, which matters just as much as functionality. Fourth, this will give a big boost to the broadband revolution, which itself is encouraging the development of new services, the promotion of e-commerce and so on. This leads to a final point. This is how an stylish chunk of American innovation sharpens our perception of a world where competitive advantage is a much more fluid concept than it has even been before. The US can still out-innovate the rest of the world. Where these phones, and their competitors, end up being made is less important than the ability of the US (or indeed other developed countries) to conceive, design and market them. Design matters. Culture matters. And for the moment at least, the US – and in a rather different way, Europe – still seems able to create the products and services that retain our economic leadership and to some extent at least, justify our standard of living.
By arrangement with
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Delhi
Durbar It seems to be a perfect case of the right hand not knowing what the left is doing. The golden jubilee issue of Yojana, a development monthly published by the Information and Broadcasting Ministry, holds a big surprise for the readers. The highlights introducing the special issue of the magazine says that “precious pieces” have been picked up for the special issue. One such precious piece dating back to January 26, 1979 has been written by none other than NDA Convenor George Fernandes, a sworn enemy of UPA Chairperson and Congress president Sonia Gandhi. The two page article titled “National Reconstruction Army” features in the magazine along with articles by Prime Minister Manmohan Singh, the late freedom fighter and member of Parliament Minoo Masani and the late Finance Minister and Socialist leader Madhu Dandavate. Although the magazine clarifies that it is not restricted to expressing the official point of view, the flattering inclusion of the article by Fernandes has led to disbelief in Socialist circles. They are wondering how a magazine published by the I&B Ministry headed by one of Sonia Gandhi’s most trusted ministers, Priyaranjan Dasmunsi, could have let the article go to the Press. Lalu clicks After becoming a management guru, union Railway minister Lalu Prasad Yadav has now turned into a freelance photographer. At a function held in Rail Bhawan recently, the minister decided to try his hand at photography and clicked a photograph or two by borrowing a news photographer’s Nikon camera. Next day, most of the newspapers carried a photograph showing the Railway Minister with the sophisticated camera in hand. The icing on the cake was that the photo clicked by Yadav was published by a Mumbai afternoon paper in its Sunday edition. Now that the newspaper is also planning to pay the minister Rs 400 for his contribution at the end of the month, the maverick Yadav can hope to pursue another career if, God forbid, things fail to go well with his political career and his bid to be the Prime Minister in the near future. Payback time The Tihar jail authorities have sent a proposal to the Delhi government recently, recommending that 25 per cent of the earnings of jailbirds be given to their victims and families. This proposal is reminiscent of the Hindi film Dushman where the wrong-doer Rajesh Khanna is asked by the court to help bring up the family of the victim. And he does his best to follow the court’s order. The jail authorities have sent this proposal to help the victims and their families, as per a court order, informed Sunil Gupta, PRO of Tihar Jail. A convict works in a kitchen or a factory and is paid according to his skills. A sum of Rs 16 is given to skilled labour; Rs 12 to the semi-skilled; and Rs 10 to the unskilled. If a convict is given the work of completing a chair, he gets Rs 16 for each chair.
Contributed by Tripti Nath, Vibha Sharma and Pramod K Chaudhari |
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