14 Dec 2023 : The Hindu Editorial

Editorial 1 : End the uncertainty

Context: Centre’s proactive approach to resolve issues of Sri Lankan repatriates is must.

Introduction

• The Madras High Court has demonstrated how the judiciary can provide succour to a person waiting for over 40 years to get Indian citizenship. In T. Ganesan vs The Government of India & Others, the Madurai Bench of the High Court, in its judgment on November 30, directed the authorities to treat the petitioner and his family as Indian citizens, thus extending to them relief measures that the Tamil Nadu government provides to repatriates from Sri Lanka.
   

What was the case?

• The 69-year-old petitioner, now a resident of a refugee camp in Karur, reached India in 1990 after having been issued an Indian passport in Kandy in August 1982 on repatriation under two bilateral treaties that concerned hill country Tamils or Indian Origin Tamils (IOT).
• He had approached the court as the authorities treated him only as a Sri Lankan refugee even though he is an Indian citizen.
• The government accepted the genuineness of his passport but doubted his identity because the photograph was the image of a “far younger” person. But the court rejected this position.
• Ganesan is not the only such person. The court has recorded that around 5,130 applicants (IOT category) have sought citizenship.

Judiciary, rescuing those in camps.

• This is not the first time that the Bench, especially Justice G.R. Swaminathan, has gone to the rescue of those in the camps.
• In the last 15 months, the judge had established that the petitioners concerned were Indian citizens, interpreting provisions of the Citizenship Act, and should be issued passports.

Legal position of the Union government.

• Otherwise, the general legal position of the Union government is that every refugee is an illegal migrant though entitled to benefits. A DMK State government study found that nearly 8,000 refugees are eligible for Indian citizenship as they do not come under exclusions of the law.
• The Union government’s stand has been that despite not being a signatory to the 1951 UN Refugee Convention or the 1967 Protocol, it adheres to the principle of non-refoulement. The government also favours the voluntary repatriation of refugees to Sri Lanka. This was a reason why the Citizenship (Amendment) Act, 2019 did not include Sri Lankan refugees.

What the Union government should do?

• The Centre should ensure follow-up action on the DMK government’s study. It should first identify those eligible for citizenship under the legal framework and ascertain their consent.
• For those who wish to pursue higher studies or go abroad for a livelihood, permission can be granted if the applicant has no criminal record. The Union government should initiate talks with Sri Lanka on voluntary repatriation and a structured assistance programme worked out.

Conclusion

• A proactive approach should be followed to ensure that those tagged as refugees are able to lead a life of dignity.

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  Editorial 2 : Article 370 judgment is a case of constitutional monism

Context: Such a judicial reading in a context that defies monism also affects federalism and constitutional democracy.

Introduction

• More than four years after the abrogation of Article 370, the Supreme Court of India, on Monday, unanimously upheld the actions of the Indian government.
• While much of the discourse around the judgment has focused on the question of statehood, it is important to remember that the special status of Jammu and Kashmir (J&K) was really at the heart of the matter.
• To arrive at its conclusions, the Court employs a historical, textual, and structural interpretation of the Constitution of India, and all three approaches are deeply informed by constitutional monism.

Federalism and constitutional sovereignty

• The monism that is reflected in the judgment imagines the Union Constitution as the sole bearer of internal and external sovereignty. While this may be true, Article 370 laid down an elaborate framework for the distribution of powers and authority between the Union and the State governments.
• By focusing more on the particular concept of sovereignty ‘which requires no subordination to another body’, the Court ends up refusing to recognise the shared sovereignty model of Article 370.
• After all, sovereignty in federal constitutions is not a binary concept restricted to a simple ‘is’ or ‘isn’t’ classification. Rather, it encompasses various dimensions and exists along a spectrum of degrees.

The contingency of the presidential power

• Another site where the Court’s monism operates is in its reading of Clause 3 of Article 370. The Court rejects the argument that Article 370 had gained permanence after the dissolution of the Constituent Assembly as this ‘is premised on the understanding that the constitutional body had unbridled power to alter the constitutional integration of the State with the Union’.
• In a constitutional democracy, no body or institution has unbridled powers. Further, Clause 3 of Article 370 is primarily concerned with the relationship of two powers and not just the status or the relationship of the power-bearing entities. The proviso to Clause 3 makes it clear that the presidential power to abrogate Article 370 was contingent on the recommendation of the Constituent Assembly.
• As it is in the nature of the presidential powers under Clause 3 to be contingent on the Constituent Assembly, this limitation does not die with the dissolution of the Assembly.
• The relation of powers here does not mean that the President becomes ‘subordinate’ to the Constituent Assembly but that power as a federal arrangement has been distributed across multiple axes under Article 370.
• Holding that the President has the untrammelled power to abrogate Article 370 and order a total application of the Indian Constitution to the State to the effect that the State’s Constitution becomes inoperative is an ‘unbridled power’ that defies the logic of federalism and constitutional democracy.

State’s views on its future

• The judgment’s monism imagines popular sovereignty as a monolith where since the views of an individual State for the purposes of reorganisation are not binding on Parliament, Parliament, therefore, is well placed to speak for the state.
• Justice Sanjay Kaul holds that ‘views are to be taken from the entire nation via the Parliament, as the issue leading to the reorganisation affects the nation as a whole’.
• There are many sites within the Constitution where a recommendatory power is vested in a body. Merely because that power may not be binding does not mean that the power can be taken over by another body or that power need not be exercised because at its heart lies the question of agency.

Conclusion

• The inevitable conclusion that one arrives at is that the popular sovereignty of a State’s people vis-à-vis the State becomes subordinate to the popular sovereignty of the entire nation vis-à-vis the Union as well as the States.
• This is particularly worrying in the context of J&K where the threshold for reorganising the State was historically much higher compared to the other States.

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