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19 Jan 2023 : The Hindu Editorial Analysis

Editorial 1: Admonishments that endanger the Constitution

Context:

  • In April 2023, it will be 50 years since the Supreme Court of India delivered its verdict in Kesavananda Bharati vs State of Kerala. The judgement is widely recognised as a milestone in India’s history. In holding that Parliament’s power to amend the Constitution was not plenary, that any change that damages the document’s basic structure would be declared void, the Court, it was understood, had helped preserve the essence of our republic.

 

Collegium as target:

Collegium System is a system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.

 

Evolution of the System:

1. First Judges Case (1981): It declared that the CJI’s (Chief Justice of India) recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

2. Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation” in constitution means “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC. Thus, the collegium system initially was composed of CJI and 2 of his senior most colleagues.

3. Third Judges Case (1998): SC on the President's reference (Article 143) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

 

  • In the years since the verdict — if not in its immediate aftermath — its importance has been recognised by successive governments. During this time, most criticism of the doctrine has been confined to the manner of its application rather than its legitimacy. But last week, India’s Vice-President Jagdeep Dhankhar launched a salvo of attacks at the Supreme Court, by calling into question the ruling’s correctness.
  • The Union Minister of Law and Justice, Kiren Rijiju, and indeed Mr. Dhankhar, have repeatedly doubted the Court’s judgement in 2015, in which it struck down efforts to replace the collegium with a National Judicial Appointments Commission (NJAC). That criticism has now turned sharper, with the Vice-President’s diatribe against Kesavananda.

National Judicial Appointments Commission (NJAC)

  • NJAC was a constitutional body proposed to replace the present Collegium system of appointing judges. It was established by the 99th Constitutional Amendment Act, 2014.
  • It consisted of six people: CJI, two most senior judges of the SC, Union Law Minister and Two ‘eminent persons’ nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha.
  • The Constitutional bench of the Supreme Court struck down the NJAC Act and the 99th Constitutional Amendment for violating the ‘Basic Structure’ doctrine, including judicial independence.

 

Attack on the Doctrine of Basic Structure :

  • Speaking in January 2023 at the 83rd All India Presiding Officers (Assembly Speakers) Conference in Jaipur, the Vice President said that “in a democratic society, the basic of any basic structure is supremacy of people, sovereignty of parliament…The ultimate power is with the legislature. Legislature also decides who will be there in other institutions. In such a situation, all institutions must confine to their domains. One must not make incursion in the domain of others.”
  • Mr. Dhankar then heightened his criticism by doubting the legitimacy of the basic structure doctrine. The correctness of the Court’s view, he said, “must be deliberated…Can Parliament allow that its verdict will be subject to any other authority?”
  • To be sure, genuine criticism of both the Collegium’s functioning and the Court’s judgement upholding the body’s legality ought to be welcomed. But seeing as the Government, as Mr. Rijiju confirmed in Parliament last month, has no plans to implement any systemic change in the way we appoint judges, and given that the Government itself has done little to promote transparency in the process, the present reproach is, at its best, unprincipled, and, at its worst, an attempt at subverting the judiciary’s autonomy.
  • That it is likely the latter is clear from the fact that the Vice-President has now carried his denunciation to a point where his admonishments are reserved not just for the collegium but also for the ruling in Kesavananda.

 

The foundation of the Constitution

  • Our Constitution is a product of a collective vision. That vision was built on ideals including that India would be governed by the rule of law, that our structure of governance would rest on Westminster parliamentarianism, that the powers of the legislature, the executive and the judiciary would be separate, that the courts would be independent of government, and that our States would have absolute power over defined spheres of governance.
  • What happens when an amendment made to the Constitution harms one or more of these principles in a manner that alters the Constitution’s identity? Would the Constitution remain the same Constitution that was adopted in 1950? Should Parliament amend the Constitution to replace the Westminster system with a presidential style of governance, would the Constitution’s character be preserved? Or consider something rather more radical: can Parliament, through amendment, efface the right to life guaranteed in Article 21? Would this not result in the creation of a document of governance that is no longer “the Constitution of India?”
  • The German professor Dietrich Conrad had pointed out, that “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”.

 

On ‘amendments’

  • As the Court would later explain in Minerva Mills vs Union of India (1980) — and incidentally at stake there was the very survival of the idea that fundamental rights are inviolable — “Parliament too is a creature of the Constitution”.
  • Therefore, it can only have such powers that are expressly vested on it. If those powers are seen as unlimited, Parliament, the Court found, “would cease to be an authority under the Constitution”; it would instead “become supreme over it, because it would have power to alter the entire Constitution including its basic structure”.
  • In other words, the principle that Parliament is proscribed from changing the Constitution’s essential features is rooted in the knowledge that the Constitution, as originally adopted, was built on an intelligible moral foundation.
  • On this construction, it is possible to see the basic structure doctrine as implicit on a reading of the Constitution as a whole. But it is also deductible, as Justice H.R. Khanna wrote in his controlling opinion in Kesavananda, through an interpretation of the word “amendment”. The dictionary defines “amendment” to mean a “minor change or addition designed to improve a text”.
  • As Justice Khanna saw it, when the Constitution that emerges out of a process of amendment as stipulated in Article 368 is not merely the Constitution in an altered form but a Constitution that is devoid of its basic structure, the procedure undertaken ceases to be a mere amendment.

 

Conclusion:

  • Since its judgement in Kesavananda, the Supreme Court has identified several features that are immutable. There is no doubt that on occasion, the Court’s interpretation of these features has suffered from incoherence. But to suggest that the basic structure doctrine is by itself unsanctioned is to place the Constitution at the legislature’s whim.
  • When taken to its extreme, accepting the Vice-President’s claims would mean that, in theory, Parliament can abrogate its own powers and appoint a person of its choice as the country’s dictator. Consider the consequences.

Editorial 2: The futility of underbalancing China

Introduction:

  • One of the most disquieting puzzles the Indian strategic community has been confronted with since 2020 are the sources of New Delhi’s underbalancing behaviour towards China. Does the answer to this behaviour lay solely in India’s domestic political considerations?
  • More so, how exactly should we characterise India’s underbalancing behaviour vis-à-vis the China threat? Does it amount to ‘buck passing’ (hoping someone else will deal with it), appeasement of the source of the threat itself (China), hiding from the threat altogether, or is it a combination of all these? Will going easy on China moderate China’s aggression? Or does New Delhi think that ignoring the China threat will make it disappear eventually?

 

India’s response to threat

  • To begin with, there is a growing consciousness within the government and the larger strategic community in India that China is a threat to India’s national security. There has been a clear shift of focus from the Line of Control (LoC) to the Line of Actual Control (LAC) and the consequent force redeployment has been considerable. There has also been some decisive effort to curtail India’s tech-coupling with China.
  • And yet, there doesn’t appear to be a comprehensive assessment of the China threat, and an evaluation of potential Indian responses. What is missing is an unambiguous political commitment to meet the China threat. New Delhi’s China strategy is akin to closing one’s eyes and pretending it is dark around.
  • Needless to say, that the heart of the Indian approach is based on the belief that balancing China is fraught with risks. To begin with, it is neither possible nor desirable for India to actively man the entire LAC with China.
  • Secondly, responding to China could potentially spread the fight, thereby creating more flashpoints on the LAC, something New Delhi wants to avoid.
  • Thirdly, India’s underbalancing behaviour is also a result of the uncertain outcomes of a military escalation with a superior power.
  • And yet, there are also significant risks in the current strategy of underbalancing China. For one, given the absence of active Indian responses, a far more powerful China is likely to increase the tempo of its territorial pursuits. More so, underbalancing China also entails a lack of political clarity regarding the China threat and the articulation of redlines to meet that threat. This, in turn, leads to an uncertainty about what India’s friends and partners could or would do for India if there is a standoff with China.
  • There seems to be a strong strand of thinking in New Delhi that we should wait to build our capability to take on the China threat. But such a strategy of ‘threat postponement’ is based on misplaced optimism as China will continue to grow stronger than India. And by the time India catches up, if ever, it would be too late to take back the lost territory.
  • There may be some merit in the hypothesis that if there is no clear political articulation, China could exploit the policy confusion in New Delhi and keep probing the borders. But does unambiguous political articulation of the China threat and setting redlines by New Delhi help? Theoretically yes, but doing so is not without dangers.

 

Way forward: India’s options

  • In other words, while domestic political calculation might be prompting the government to insufficiently acknowledge the China threat, there are also other ‘understandable’ reasons behind the current strategy of underbalancing China. So, what indeed are New Delhi’s options in order to deal with the China threat?

 

1.Path of Escalation

  • New Delhi could employ a tit-for-tat strategy and consider occupying unmanned areas on the Chinese side. This is doable, but India must be prepared for similar actions from the Chinese side.

 

2. Path of Economic Resistance

  • New Delhi could further raise the economic costs for China by reducing high tech Chinese imports in select areas.

 

3. Nuclear deterrence

  • It is perhaps an opportune moment for New Delhi to consider nuclear modernisation and perhaps even develop low yield weapons. Why not retest its thermonuclear weapons to strengthen its nuclear deterrence, thereby sending a message to Beijing?

 

4. Partnering the West

  • Notwithstanding the accuracy of the argument that India’s growing strategic partnership with the U.S. is the reason behind China’s aggression, China’s aggression is indeed a good reason for New Delhi to strengthen its strategic partnership with the U.S. and the West. We must become more open and forthcoming about it.

 

Conclusion:

  • There must be more clarity on how India’s key strategic partnerships and defence agreements will come to its aid in the event of an escalatory situation with China. That Beijing will go easy on New Delhi if the latter goes slow with Washington is a dangerous expectation in the garb of a lazy argument. Underbalancing China has not helped, and it is now time to devise strategies to balance the China threat.